Howard v. Howard

• Decision Date: 17 January 1952
• Docket Number: No. 3678,3678
• Citation: 239 P.2d 584,69 Nev. 12
• Parties: HOWARD v. HOWARD.
• Court: Nevada Supreme Court

Page 584

239 P.2d 584

69 Nev. 12

HOWARD v. HOWARD.

No. 3678.

Supreme Court of Nevada.

Jan. 17, 1952.

Hawkins & Cannon, Las Vegas, A. Brigham Rose, Los Angeles, Cal., for appellant.

Jones, Wiener & Jones, Las Vegas, for respondent.

BADT, Chief Justice.

Louise Alice Howard obtained a judgment in the court below setting aside a decree of divorce theretofore obtained in the same court by Fred Allen Howard, appellant. This appeal is from the judgment setting aside the divorce decree and from the order denying new trial. To avoid confusion, the parties are referred to by their given names.

Louise and Fred were married in 1912. Two sons and a daughter, all of whom have obtained their majority, were the issue of the marriage. Louise and Fred separated in 1925 or 1926, since which time they appear to have made litigation their chief avocation. In 1926 Fred returned with his three children, then minors, from a fishing trip and found his wife gone and the furniture sold. He commenced an action for divorce in Los Angeles but later dismissed it. In 1923 Louise had commenced an action in Los Angeles County, California, against Fred for divorce. She dismissed this action but immediately thereafter filed a second divorce action, which also sought to set aside a property settlement agreement alleged to have been obtained by fraud. This action was likewise dismissed by her.

In January, 1936, Louise commenced an action in the Superior Court of California, in and for the City and County of San Francisco, against Fred for separate maintenance. In that case the record indicates an order made in February, 1936, ordering Fred to pay Louise $50 a month alimony pendente life. Arrears of several thousand dollars are said to have accrued and to remain unpaid under this order.

During the period of their separation Fred commenced an action against Louise to evict her from certain premises occupied by her. The details of this action are lacking, although it is indicated that it resulted in a judgment evicting her from the premises.

In 1924 or 1925 Fred obtained a Mexican divorce from Louise, but thereafter decided that the same was ineffective. On August 14, 1945, Fred married one Winifred Davis, and on November 10, 1949, he obtained an interlocutory decree of divorce from her in the Superior Court of Los Angeles County, California, but the District Court of Appeal of that state on June 25, 1951, reversed the judgment for want of the plaintiff's compliance with the statutory requirement for corroboration. Howard v. Howard, 105 Cal.App.2d 126, 232 P.2d 530. Winifred also had a divorce action pending against Fred. The cited case affirmed the judgment denying her a divorce. After Louise discovered that Fred had married Winifred, Louise caused a criminal complaint to be filed against Fred, charging him with bigamy. She learned in 1945 that the bigamy charge had been dismissed by the California court upon submission to that court of Fred's decree of divorce from Louise--Fred's marriage to Winifred therefore appearing not to be bigamous. Fred filed his first Nevada action for divorce from Louise in the Eighth Judicial District Court, in and for Clark County, July 6, 1942, being action No. 14405. That action came on for trial on October 6, 1942 before Honorable George E. Marshall, then district judge of that court. At that time Judge Marshall cross examined Fred with reference to the latter's knowledge of his wife's residence and his attempts to locate her for the purpose of service. Judge Marshall indicated considerable impatience with the conflicting answers given by the witness, and denied the decree on the ground that he had not made sufficient effort to locate Louise. On October 20, 1942, just fourteen days after Judge Marshall denied the decree in Fred's action No. 14405, Fred filed another action in the same court, also seeking a divorce from Louise, being action No. 15266. Service was again ordered by publication, which was completed November 12, 1942, and no appearance was made by the defendant within thirty days after completion of that publication. The matter was however not called up for hearing before Honorable Geo. E. Marshall, the judge of the Eighth Judicial District Court, but was called up over three months thereafter on March 25, 1943, when Honorable Harry M. Watson, judge of the Seventh Judicial District Court in White Pine County, was occupying the bench temporarily in Clark County, on which date the case was heard and a decree of divorce from Louise entered. Nothing appeared in the record that might have alerted Judge Watson to the former proceedings before Judge Marshall or to anything unusual or improper in the service by publication. On August 31, 1949, some six years and five months thereafter, Louise filed her complaint to set aside the judgment of divorce obtained by Fred March 25, 1943. This was action No. 46173 in the Eighth Judicial District Court of Clark County, and was tried by Honorable A. S. Henderson on May 18 to 20, 1950. It was submitted on written briefs, and Judge Henderson on March 9, 1951 filed a written decision, pursuant to which findings and judgment setting aside the former divorce decree were filed on April 20, 1951. On the same date Fred's objections to Louise's proposed findings were overruled and his motion for new trial denied. The judgment setting aside the divorce decree ordered that Louise have to and including May 15, 1951 within which to serve and file her answer or otherwise plead to Fred's complaint for divorce. Louise failed to take advantage of this right, which she had continuously and consistently sought throughout the proceedings, her default was entered, and on September 15, 1951 Fred called up his divorce complaint for hearing (being in the same action, case No. 15266) in which his earlier decree of 1943 had been set aside by the judgment now being considered on appeal. On the last named date, Honorable A. S. Henderson again presiding, a decree was entered granting Fred a divorce from Louise. In the meantime, on June 20, 1951, Fred had filed his notice of appeal from the judgment here involved which had set aside his 1943 divorce decree. Whether Judge Henderson knew on September 15, 1951 (when he granted Fred his divorce) that Fred had taken an appeal from Judge Henderson's judgment vacating Fred's decree granted by Judge Watson, and which appeal, if successful, would have left Fred with two divorce decrees in the same court against his wife on the identical cause of action and the identical statement of facts, does not appear. We are justified in concluding that at this point, although Fred was in his appeal still insisting on the validity of his 1943 decree, both parties were entirely agreeable to the granting of Fred's 1951 decree.

If we should reverse the judgment new before us therefore, Fred will be left (at least as a matter of record) with his 1943 divorce and his 1951 divorce in the same court. If we affirm the judgment, he will have a divorce decree from Louise as of 1951 instead of as of 1943. What will happen to his divorce suit against Winifred, apparently still pending in California, is a matter for the consideration of the California courts. And whatever further litigation may spring from the fertile minds of the litigants in California, Nevada or elsewhere, or from the ingenuity of their several attorneys, is likewise a matter for conjecture. ¹

When this action was tried and submitted to Judge Henderson in May, 1950, Judge Henderson was entirely justified in believing, and apparently did believe, that Louise desired and intended in good faith to appear and defend the divorce action if given an opportunity so to do. Her initial attack on Fred's divorce decree was by way of a motion in that suit to open up the default, set aside the judgment and permit her to answer and defend. Repeatedly in the notice of motion and the affidavit supporting the same she begged the court for leave to answer, stated that she had been fraudulently deprived of an opportunity to defend the action on the merits, that she had a valid defense and that if she had been served or notified she would have filed an answer and cross complaint. In connection with her motion, she submitted a proposed answer. Fred appeared specially to oppose the motion on the ground that more than six months, namely, some four years or more, had elapsed since the entry of the decree. The record does not clearly indicate what disposition was made of the motion, but it apparently either was abandoned or properly denied. Lauer v. Eighth Judicial District Court, 62 Nev. 78, 140 P.2d 953. In her complaint in the separate suit to set aside the decree, the case involved in this appeal, she again recites that she was fraudulently deprived of an opportunity to defend the action on the merits, and that had she had notice she would have filed an answer, and that she had a good and valid defense. As an exhibit, she attached a copy of her complaint for divorce against Fred in the Superior Court of Los Angeles County, California, verified June 15, 1923, charging extreme cruelty, with many detailed acts of cruelty set forth, and praying for a decree of divorce; also a copy of her second 1923 Los Angeles complaint alleging adultery as well as cruelty.

She annexed as an exhibit to her second divorce complaint in Los Angeles County, California, a property settlement agreement dated July 20, 1923, which purported to be 'a full, final and complete settlement of all their property rights,' but which she maintained at that time was executed by her upon the representation of Fred that the bank required same before it would make a loan to him, which loan was necessary to supply funds for his apartment house business, and that Fred assured her at the time that the instrument would have no force or effect as between them.

In her answering brief in this court, Louise maintains in support of the judgment setting aside...