Dillon v. Dillon, 3622

• Decision Date: 19 February 1951
• Docket Number: No. 3622,3622
• Citation: 227 P.2d 783,68 Nev. 151
• Parties: DILLON v. DILLON.
• Court: Nevada Supreme Court

Page 783

227 P.2d 783

68 Nev. 151

DILLON v. DILLON.

No. 3622.

Supreme Court of Nevada.

Feb. 19, 1951.

T. L. Withers, Reno, for appellant.

L. D. Summerfield, A. R. Schindler, Reno, for respondent.

MERRILL, Justice.

This is an appeal from judgment of the Second Judicial District Court in and for Washoe County. The appeal is upon the judgment roll alone. The principal question involved is as to the sufficiency of the findings of fact to support the judgment of the trial court denying alimony to appellant wife.

On March 11, 1949, respondent brought suit in the lower court asking divorce from appellant upon the ground of extreme cruelty. Appellant, in response, filed an answer and cross-complaint for separate maintenance. In due course the action was tried before the court without a jury.

On February 27, 1950, 'Corrected Findings Of Fact And Conclusions Of Law' were signed by the trial judge. Among the conclusions of law was one to the effect that plaintiff was entitled to a decree 'that the defendant be denied any relief under and by virtue of her Answer and Cross-Complaint, and that the defendant is not entitled to any award of alimony.'

On March 4, 1950, a decree was signed by the trial judge granting respondent a divorce from appellant and providing: 'That the defendant be, and she hereby is, denied any relief under and by virtue of her Answer and Cross-Complaint, and that said defendant be, and she hereby is, denied any award of alimony.'

Appellant first contends that the court's findings of fact do not show that they were served upon appellant five days prior to the signing thereof, pursuant to the provisions of Sec. 8784 N.C.L.1929 Supp. 1931-1941, no proof of service appearing in the record; that the findings, accordingly, must be completely disregarded and the judgment reversed.

It is true that no proof of service appears in the record. Confined as it is to the judgment roll, the record is wholly devoid of any indication as to the manner in which the findings were settled or as to the steps which led to their signing. From this it is equally true that it does not affirmatively appear from the record that service was not made as required by statute. The record is as susceptible of one conclusion as of the other. Under these circumstances it cannot be presumed by this court that the trial court was guilty of error which does not affirmatively appear upon the face of the record. 'This court will not indulge in presumptions against the regularity of the proceedings of the trial court.' Schwartz v. Stock, 26 Nev. 128, 143, 65 P. 351, 352.

Appellant next contends (as her second and third assignments of error) that the judgment denying her alimony is unsupported by findings of fact and is based wholly upon a...