Shane v. Shane

• Decision Date: 03 January 1968
• Docket Number: No. 5331,5331
• Citation: 435 P.2d 753,84 Nev. 20
• Parties: Joseph P. SHANE, Appellant, v. Pauline V. SHANE, Respondent.
• Court: Nevada Supreme Court

Page 753

435 P.2d 753

84 Nev. 20

Joseph P. SHANE, Appellant, v. Pauline V. SHANE, Respondent.

No. 5331.

Supreme Court of Nevada.

Jan. 3, 1968.

Alex A. Garroway, Reno, for appellant.

A. D. Jensen, Reno, for respondent.

OPINION

MOWBRAY, Justice:

This is an appeal from a judgment and decree awarding to respondent a divorce on the ground of extreme cruelty and an award to respondent of $16,500 'in lieu of all her community property rights and as and for alimony.'

Appellant's answer denied the charge. The trial court found that since the marriage of the parties the appellant had treated the respondent with extreme cruelty 'and that said cruelty caused plaintiff to become nervous and thereby lose all of her hair. That plaintiff's health would be irreparably damaged in the event said marriage continued. A reconciliation by and between the parties is impossible.'

On this appeal we are not concerned with the particular acts relied on by the respondent. Appellant's contention for a reversal is that there is insufficient evidence to justify the conclusion that the conduct of appellant, even if cruel, injured respondent's health or put her in fear of injury to her health.

This court said in Ormachea v. Ormachea, 67 Nev. 273, 283, 217 P.2d 355, 360 (1950):

'The appellant insists that it (the cruelty) is not enough and does not establish danger to health, life, limb or the reasonable apprehension thereof. We think it does. We cannot always expect that a party in a divorce action will express himself explicitly. In such a matter as this we must to a great extent rely on the trial judge's impressions. He sees and hears the witnesses, and acquaints himself with the way in which a witness expresses himself. He is in a better position to observe the conduct and demeanor of the witness and whether the witness tends to overstate or understate his testimony. Wittenberg v. Wittenberg, 56 Nev. 442, 55 P.2d 619. In this case the trial court had substantial evidence to make a finding, and we are not inclined to disturb it. Porter v. Tempa Mining &amp Mill Co., 59 Nev. 332, 93 P.2d 741; In re Manse Spring, 60 Nev. 280, 108 P.2d 311. As an appellate court we cannot substitute our judgment for that of the trial judge in such matters, and will reverse only when there is no substantial evidence to support the finding of the trial court.'

We reaffirm this well established principle and find it applicable in the instant case.

It is upon the trial judge's valuation of the character and refinement as well as the sensibilities of the respondent, rather than upon the complaining party alone, that his determination of the effect of the cruel treatment upon the health of the injured spouse should be based. Ormachea v. Ormachea, supra; Bess v. Bess, 58 Idaho 259, 72 P.2d 285 (1937); Bradley v. Bradley, 284 P.2d 434 (Okl.1955).

It is proper to infer that the conclusion of the trial judge, in holding that the appellant had been guilty of such extreme cruelty as to authorize a divorce, was a result of finding that the aforesaid requirements thereof were present. Bess v. Bess, supra.

Appellant further complains that the trial judge's award of $16,500 to respondent 'in lieu of all her community property rights and as and for alimony' was error.

The courts of this state are authorized by statute to award alimony and make such disposition of the community property of the parties as shall appear just and equitable. ¹

Before the appellate court will interfere with the trial judge's disposition of the community...