Lamb v. Lamb

• Citation: 65 P.2d 872,57 Nev. 421
• Decision Date: 05 March 1937
• Docket Number: 3161.
• Parties: LAMB v. LAMB.
• Court: Supreme Court of Nevada

65 P.2d 872

57 Nev. 421

LAMB v. LAMB.

No. 3161.

Supreme Court of Nevada

March 5, 1937

Appeal from District Court, Ormsby County; Clark J. Guild, Judge.

Suit by Frank B. Lamb against Doris Lamb. From a judgment and an order for plaintiff, defendant appeals.

Affirmed.

William M. Kearney, of Reno, for appellant.

Ayres Gardiner & Pike, of Reno, and George L. Sanford, of Carson City, for respondent.

TABER Justice.

This case comes here on appeal from a judgment of the First judicial district court, Ormsby county, and from an order of that court denying a motion for a new trial. The action is one for a divorce, and respondent, plaintiff in the trial court, was granted a decree on the ground of extreme cruelty. Except for two allegedly erroneous instructions given to the jury, and which will be referred to later, this appeal is based on the contention that plaintiff's alleged residence in Nevada was not in good faith, but, on the contrary, was for the sole purpose of procuring a divorce. Plaintiff's conduct with regard to establishing an alleged residence in Nevada was, appellant claims, a fraud not only on her but on the court as well. Respondent insists that his residence in Nevada was bonafide; that when he first came to Nevada it was his intention to make his home here and that such intent remained the same at all times thereafter.

Plaintiff and respondent intermarried in 1927 at Pittsfield, Mass., and thereafter resided at Norwich, Conn., until they came west in the summer of 1933, at which time plaintiff claims he became a resident of Nevada. Defendant's trip west was a needed vacation, and she went to Long Beach, Cal., to visit relatives. Soon after she reached there plaintiff arrived from Norwich, on August 6th, and then one of her relatives drove her, plaintiff, and their small child to Zephyr Cove, a summer camp in Douglas county, Nev., on the shore of Lake Tahoe. After a few weeks there, defendant returned to Norwich. Shortly thereafter plaintiff also went to Norwich whence, after remaining but one day, he returned to Nevada, and commenced this action for divorce on October 27, 1933.

We shall now give a brief summary of the testimony upon which appellant mainly relies in support of her position that plaintiff's alleged residence was not in good faith, and that the trial court was therefore without jurisdiction.

Mrs. Gloria B. Wiley, called by plaintiff, testified that plaintiff and defendant arrived at Zephyr Cove about August 8, 1933, having been driven there by a gentleman who had previously been there and "evidently recommended the place to them"; that Zephyr Cove is a camp for summer tourists, and is closed in winter; that plaintiff and defendant engaged a cottage for one month; that witness saw plaintiff practically every day, but that she did not believe it was for the full month; that plaintiff and defendant did not have a car when they first came, but shortly afterwards plaintiff went to Carson or Reno and brought back a Ford; that later he had another car.

H. A. Peigh, called by plaintiff, testified that he saw plaintiff daily between August 8 and September 9, 1933; that he and plaintiff were absent one day, about September 4th, at Lodi and San Francisco; that after September 9th plaintiff went east, returning on September 28th; that from September 28th until October 12th witness and plaintiff lived at the Frandsen Apartments in Reno, moving thence to an apartment at Bradley's in Carson City, where they lived a week, then moving again to Mrs. Sam Davis' house in Carson City, where they lived from October 19, 1933, to February 1, 1934.

Plaintiff, in his own behalf, testified that he first came to Nevada August 4, 1933; that he stayed one day at Reno, where he procured from an attorney a blank power of attorney which he took with him to Long Beach for defendant to execute, as he understood that she would give him a divorce without any contest; that defendant refused to execute the power of attorney; that plaintiff still owned the home where he and defendant lived at Norwich, and a building lot near a lake in Connecticut on which he had built a small house; that while at Long Beach he talked things over with defendant; that he wanted to get a divorce at that time; that he did not care to go on under existing conditions; that he could not go home; that the cottage at Zephyr Cove was hired for a month, as he recalled; that at that time he was more or less run down, tired, his nerves were on edge, and he could not do much of any work unless it was laboring; that he decided they would rest there for a month or so, and then he would look for work and they would "settle down out here somewhere"; that after returning from his trip to Norwich he went to the Girl Scout Camp at Zephyr Cove and worked around there, cleaning the place up, two or three days; that during this time he usually ran back into Reno each day, and stayed in Reno more than he did at Lake Tahoe.

C. F. Wiley, called by defendant, testified that when the cottage was rented plaintiff said he would rent it for a month, and that he and his family would be there about two weeks longer; that defendant left in about three weeks, and that about a week after she left plaintiff also left and "we didn't see him for somewhere around a week."

Mrs. Gloria B. Wiley, called by defendant, testified that she operated the summer camp at Zephyr Cove; that after defendant left the camp, plaintiff returned to Zephyr Cove with a Pontiac sedan before leaving for the East; that after leaving her camp for the East, plaintiff did not again take up his abode there, but that about a month after leaving he returned and lived nearby at the Y.W.C.A., camp for awhile, keeping house there with Mr. Peigh; that plaintiff did not make any inquiries of witness regarding defendant after she left; that while plaintiff was at the Y.W.C.A. camp he was not, to her knowledge, doing anything except keeping house with Mr. Peigh.

Defendant, in her own behalf, testified that she did not anticipate plaintiff's arrival at Long Beach on August 6, 1933; that he had written her a letter from New London, Conn., informing her that he was going to leave there at some later date--she did not know when; that some time before she left for the West plaintiff had told her he wanted to be alone that summer and think things over; that he was gone for five weeks before she came West, and she did not know whether he was alive or dead "or what," and she worried herself sick and felt she needed a vacation; that her husband bought the round trip ticket for her, the return limit on which she believed would be up in October; that she refused to execute the power of attorney at Long Beach; that plaintiff suggested the trip to Lake Tahoe; that defendant did not know they were coming to Nevada; that plaintiff said they were just going to stay for awhile; that after they arrived at Mr. and Mrs. Wiley's summer camp at Zephyr Cove, plaintiff told her they were in Nevada, and a few days after their arrival he requested defendant to go to Reno to see an attorney about getting a divorce--the same attorney from whom plaintiff had procured the power of attorney; that she told plaintiff she did not want a divorce--that she loved him; that they were enjoying their vacation, except for plaintiff's continued efforts to persuade her to go and see the Reno attorney and have him get a divorce for her--plaintiff being willing to pay the expenses; that finally he told her that if she would not go and see the attorney he would do so himself, and would start action against her; that she finally went to see Mr. Kearney, and on the advice of counsel left Lake Tahoe and went back to her home at Norwich, where she continued to live; that before going to Zephyr Cove plaintiff told her he had been in Nevada; that her trip to Lake Tahoe was for the purpose of a vacation.

We now briefly review the testimony upon which plaintiff rests his contention that his residence was bona fide.

The testimony of H.A. Peigh has already been referred to.

C. L. Morrison testified that plaintiff resided in Carson City, at Bradley's and Davis', "all winter" from and after October 12, 1933.

Mrs. Gloria B. Wiley, hereinbefore mentioned, testified that defendant, before leaving Zephyr Cove, was inquiring about any one going East who would drive her car; that witness assumed plaintiff was remaining.

In his own behalf, plaintiff testified that when he arrived at Zephyr Cove on August 8th he had the intention of making Nevada his home; that he still had that intention; that he was engaged in the business of renting saddle...