Confer v. Second Judicial Dist. Court in and for Washoe County

• Decision Date: 18 June 1925
• Docket Number: 2688.
• Citation: 236 P. 1097,49 Nev. 18
• Parties: CONFER v. SECOND JUDICIAL DIST. COURT IN AND FOR WASHOE COUNTY et al.
• Court: Nevada Supreme Court

236 P. 1097

49 Nev. 18

CONFER v. SECOND JUDICIAL DIST. COURT IN AND FOR WASHOE COUNTY et al.

No. 2688.

Supreme Court of Nevada

June 18, 1925

On petition for rehearing. Petition denied.

For former opinion, see 234 P. 688.

Frame & Raffetto, of Reno, for petitioner.

S. W Belford, Samuel Platt, and E. F. Lunsford, all of Reno, for respondents.

SANDERS J.

We shall supplement the statement of the facts in order that there may be no misunderstanding of the questions of law presented in argument for a rehearing.

In October, 1922, Nathan A. Confer commenced an action in the district court for Washoe county against Emma E. Confer for a divorce, upon the ground of extreme cruelty, alleging residence in that county for a period of 6 months before the filing of his complaint. Summons and copy of the complaint were served personally on the defendant at her place of residence in Pennsylvania. She came to Reno, Washoe county Nev., in response to said summons, appeared in the action and filed an answer to the complaint. Subsequently she filed an amended answer, in which she alleged, in paragraph II thereof, as follows:

"Answering the allegations contained in paragraph II of plaintiff's complaint, defendant alleges that she has no knowledge of the matters and things in said paragraph alleged, and denies the same upon information and belief, and in this connection defendant avers that plaintiff, on or about the 18th day of April, 1922, without any cause or provocation upon her part, and without informing defendant of his purpose, suddenly and mysteriously left the home of plaintiff and defendant in the borough of Hamburg, county of Berks, state of Pennsylvania, and that plaintiff's whereabouts remained unknown to defendant until service of process in the above-entitled action was made upon her in the state of Pennsylvania, on or about the 31st day of October, 1922."

Paragraph II of the complaint reads as follows:

"That the plaintiff is now, was, and has been an actual resident of the city of Reno, county of Washoe, state of Nevada, for the period of more than 6 months immediately preceding the commencement of this action."

In her answer, the defendant admitted and denied portions of the complaint, and for further and separate defense, and by way of cross-complaint, alleged, in substance, that the plaintiff, on or about the 18th day of April, 1922, without justifiable cause, willfully and without the consent of the defendant, and against her will, deserted the defendant. She alleged that plaintiff was the owner of property, consisting of real estate in the states of Pennsylvania and New Jersey, of the approximate value of $95,000, and was the owner of personal property of the approximate value of $25,000. She alleged that she was without any means of support, excepting the sum of $1,500 invested in Liberty bonds, and had no income excepting the interest received from said bonds; that the sum of $250 was a reasonable sum to be allowed and paid monthly by the plaintiff to the defendant for her permanent support and maintenance. The defendant prayed judgment that the plaintiff take nothing by his action, and that the defendant have judgment against the plaintiff for the sum of $250 per month as and for her separate maintenance and support, and for such other and further equitable relief as might be just and equitable in the premises. The plaintiff made reply to the answer and cross-complaint. After a hearing upon the pleadings and evidence, the trial court found, among other of its findings, as follows:

"The court further finds that plaintiff is now, was, and has been an actual resident of the city of Reno, county of Washoe, state of Nevada, for a period of more than 6 months immediately preceding the commencement of this action, and that plaintiff for more than 6 months next before filing his complaint, and before the commencement of said action, was physically and corporeally present in Washoe county, Nev., in which county he had his only home, place of residence, and domicile."

Upon its findings of fact and conclusions of law, the court, on the 18th day of July, 1923, rendered judgment in favor of the plaintiff for divorce, and adjudged and decreed that the plaintiff pay to the defendant the sum of $50 per month for her permanent support and maintenance and as alimony; the court reserving the right to increase or decrease said sum upon proper application of either party.

In the answer of respondents, it is alleged and not denied that the said sum of $50 per month has been paid to the defendant and accepted by her as permanent alimony in accordance with said judgment and decree.

On the 30th day of October, 1924, Emma E. Confer filed suit against Nathan A. Confer in the district court for Washoe county, to have the decree of divorce granted Nathan A. Confer vacated and annulled. Upon her verified complaint and affidavit, setting forth the nonresidence of the defendant, the plaintiff made application to the Honorable George A. Bartlett, judge of said court, for an order for service of the summons by its publication. The court declined to grant the order. Thereupon Emma E. Confer applied to this court for and obtained an alternative writ of mandamus commanding the respondent court to make said order, or show cause before this court why it had not done so.

In our former opinion, the action of the respondent, in refusing to grant the order, was upheld, and the petition for the writ denied, upon the ground that the complaint of Emma E. Confer did not state a valid cause of action in equity to annul said decree of divorce. The question now presented for decision is, Was our decision right or was it wrong? We shall not reiterate the facts stated in the complaint to have the decree annulled, but refer to our opinion, filed on April 6, 1925, and reported in 234 P. 688.

The substance of the argument in the petition for rehearing is that this court, in declining to issue the writ of mandamus, has, in effect, decided that a nonresident who could not obtain a divorce in the state of his real residence can establish a temporary residence in Nevada for the period of 6 months and obtain a divorce against his nonresident wife. It is contended that public policy and the vindication of the law of this state demand that our former decision be righted, if for no other reason than to preserve the integrity of our courts, and thus suppress the evil of granting divorces to those who come into this jurisdiction from all parts of the globe for the sole purpose of obtaining them.

If there were anything in our former opinion, or in any prior opinion of this court, holding or intimating that it is permissible under the law of this state for a person who could not obtain a divorce in the state or country of his or her real residence to establish a temporary residence in Nevada and obtain a divorce, we should gladly overrule the decision.

The object of the Legislature in requiring a residence of 6 months in this state before a divorce can be obtained is apparent. Its purpose is to prevent a fraud upon the law of the state by nonresidents, and is in aid of restricting the dissolution of the marriage status except at the suit of a resident of this state. Hiner v. Hiner, 153 Cal. 256, 94 P. 1044. Six months' residence stands upon the same footing in law as residence for any longer period required for divorce. Residence within the meaning of the statute is discussed and defined in the following cases: Fleming v. Fleming, 36 Nev. 135, 134 P. 445; Worthington v. District Court, 37 Nev. 214, 142 P. 230, L. R. A. 1916A, 696, Ann. Cas. 1916E, 1097; Presson v. Presson, 38 Nev. 203, 147 P. 1081; Aspinwall v. Aspinwall, 40 Nev. 55, 184 P. 810; Blakeslee v. Blakeslee, 41 Nev. 243, 168 P. 950; Walker v. Walker, 45 Nev. 105, 198 P. 433.

It is pointed out in argument that it is the duty of this court, in view of the decisions cited, to construe the statute in respect to residence in divorce actions according to its own light, and not be controlled by the decisions of other courts, criticising in this connection the cases cited in...