Sisson v. Sisson

• Decision Date: 13 December 1961
• Docket Number: No. 4407,4407
• Citation: 77 Nev. 478,367 P.2d 98
• Parties: Jonathan A. SISSON, Appellant, v. Shirlee Vaughn SISSON, Respondent.
• Court: Nevada Supreme Court

Page 98

367 P.2d 98

77 Nev. 478

Jonathan A. SISSON, Appellant, v. Shirlee Vaughn SISSON, Respondent.

No. 4407.

Supreme Court of Nevada.

Dec. 13, 1961.

Rehearing Denied Jan. 8, 1962.

Sinai & Sinai, Reno, for appellant.

Breen, McDonald & Young, Reno, for respondent.

THOMPSON, Justice.

This is a divorce case. We shall refer to the parties as wife and husband, and to the three minor children, collectively, as the children.

The wife commenced suit, charging extreme cruelty, requesting a divorce and custody of the children, ages 9, 6 and 4, who were residing with her in Nevada. The husband, by answer and counterclaim, sought to deny the wife any relief and requested a divorce because of the unforgiven adultery of the wife.

He also asked for custody of the children. In reply, the wife admitted the husband's charge of adultery. After a pre-trial conference, by consent of the parties and order of court, the action was referred to a Special Master 'to diligently hear and determine all proper matters now pending, or hereafter arising, in said action to the final conclusion thereof by the Court.' After a lengthy hearing, the Master prepared and filed a report wherein he recommended that the wife be granted a divorce and custody of the children, with the right of visitation in the husband; that the husband pay $50 a month for each child as support and, in addition, set aside $6,246.90 in trust with the First National Bank of Nevada to be later disbursed for the benefit of the children 'at the rate of $50 per month each, from and after the fifteenth (15th) anniversary of their respective births.' The exhibits received in evidence, the transcript of testimony, and proposed forms of findings of fact, conclusions of law, and judgment, were submitted with the report for consideration by the court.

Objections to the Master's report and proposed findings, conclusions and judgment were interposed by the husband, and argument thereon heard by the court. Thereafter the court signed the findings, conclusions and judgment as submitted by the Master and without change. Such documents conform to the recommendations contained in the Master's report above related.

The husband appeals from the judgment thus entered, assigning many errors. Only two need be considered: First, the claimed error in awarding the wife a divorce as the 'party least in fault.' NRS 125.120. Second, the claimed error in awarding custody of the children to the wife. NRS 125.140.

Before discussing these matters, however, we desire first to resolve a dispute between the parties as to the function and power of this court upon review. The appellant husband contends that, as the findings, conclusions and judgment by the lower court were based solely upon a written record and without the benefit of 'demeanor evidence,' this court, on review, may exercise its independent discretion without regard to the findings made below and the conclusions drawn therefrom; that the appellate court is in the same position as the lower court and, therefore, may independently weigh and evaluate the written record presented. On the other hand, the respondent wife insists that this court may not weigh and evaluate such written record. To the contrary, it must approve the findings of fact made, if supported by substantial evidence.

In Garaventa v. Gardella, 63 Nev. 304, 309-313, 169 P.2d 540, 543-545, the same question was presented for determination, and was resolved. The court said: 'One of appellant's contentions is that the trial court's decisions, findings and judgments are not supported by, and are contrary to, the evidence. In the consideration of this assignment the court is confronted with an important preliminary question arising out of the fact that the evidence in the two consolidated cases tried before Judge Salter consists entirely of the transcript of testimony taken orally in the case tried before Judge Meastretti, and the documentary exhibits in that case. Appellant maintains that as the trial judge hnd no opportunity of observing the witnesses while testifying, and their demeanor on the witness stand, this court is as capable of examining the evidence and drawing conclusions from it as was the court below, and that for this reason we should re-examine the entire case, determine for ourselves the weight of the evidence and credibility of the witnesses, and draw our own conclusions. Respondent's position on this question is that under the constitution and statutes of Nevada this court has no power, in the exercise of its appellate jurisdiction, to try an appealed case on the facts de novo; that where, as here, there is a substantial conflict of evidence, the action of the trial court in determining the credibility of witnesses is not to be disturbed on appeal if that court's findings have any substantial support in the evidence. * * *

'After careful consideration of § 4 of art. VI of our state constitution and the conflicting decisions of the courts, we do not feel that this court can ignore the jurisdictional question. In our opinion the correct rule is that even where the evidence was all in writing, the trial court's findings will not be set aside unless clearly or manifestly against the weight of the evidence, or without any reasonable support therein. Of the numerous authorities sustaining this rule, we cite but a few which give the reasons for their holdings. * * *

'The conclusion we have reached in the foregoing discussion is based squarely upon the ground that in cases like the present this court has no power or jurisdiction to weigh the evidence without regard to the findings of the trial court, but can only consider the evidence for the purpose of determining whether there was any substantial evidence to support such findings, and whether the conclusions reached by the lower court were clearly wrong.'

We must, therefore, be governed by Garaventa v. Gardella, supra, in reviewing the record now before us.

1. Was error committed in granting the wife a divorce? The husband initially asserts that there is no substantial evidence upon which a court could find that his conduct adversely affected the health of the wife; that, absent such evidence, the ground for divorce of extreme cruelty is not established. In this connection the wife was asked: 'Q. Will you state whether or not the defendant's conduct toward you has adversely affected your health? A. Most definitely. I have had large medical bills. I still owe for my own personal bill $20, and I most definitely have.'

Without setting forth all of the evidence, the following additional statement is significant. 'Q. Was the defendant ever critical of you? A. He is very critical. He believes in running his life by what he reads, by what other people do, and what they write about. And now when I say this, I mean particularly in sex life. He read the Kinsey Report and told me that I was not normal because I did not come up to the specifications on page so and so that was recorded in this book. And he runs his life as the Navy runs him, by certain rules that are set down; and to me, to continually be nagged at about your sex life, and to be continually told that you are not normal because you are not doing this or that according to what he has read, I think is very nerve-wracking, and after while it becomes a complex with you. I know it certainly did with me.'

We consider such evidence to be 'substantial' in the light of prior opinions of this court. Marshburn v. Marshburn, 77 Nev. 206, 361 P.2d 112; Coolman v. Coolman, 76 Nev. 43, 348 P.2d 471; Leland v. Leland, 71 Nev. 346, 291 P.2d 905; Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355; Olszowy v. Olszowy, 65 Nev. 386, 197 P.2d 701. The cases of Nielsen v. Nielsen, 55 Nev. 425, 38 P.2d 663, and Miller v. Miller, 54 Nev. 44, 3 P.2d 1069, 6 P.2d 1117, 11 P.2d 1088, upon which the husband relies, do not contain the quantum of proof here presented.

The important problem presented by this claim of error is the application of the comparative rectitude statute, NRS 125.120, to the circumstances of this case. It reads: 'In any action for divorce when it shall appear to the court that both husband and wife have been guilty of a wrong or wrongs which may constitute grounds for a divorce, the court shall not for this reason deny a divorce, but in its discretion may grant a divorce to the party least in fault, if both parties seek a divorce, otherwise to the party seeking the divorce, even if such party be the party most at fault.'

The relevant facts regarding comparative rectitude are well defined. During May 1959, in anticipation of divorce, the parties entered into a written separation agreement settling their property rights and providing for the custody and support of the children. They also agreed that neither should annoy, molest or interfere with the other, 'nor shall either of them at any time hereafter require or by any means endeavor to compel the other to cohabit with him or her or seek to enforce any restitution of conjugal rights.' Following execution of that agreement, the parties separated and have not since lived together as husband and wife. The course of conduct by the husband toward the wife, which the lower court concluded to be extreme cruelty, occurred before the separation agreement was made. The husband did not attempt to prove conduct by the wife, occurring before their separation, which would afford him cause for divorce. The deliberate adultery of the wife, which she admitted by her pleading and testimony, occurred after the separation agreement was made and when their separation was a fact, and is the conduct upon which the husband based his counterclaim for relief.

We have heretofore indicated that adultery, per se, need not be held a graver matrimonial delict than cruelty. The degree of fault in each party must be determined under the facts of the particular case. Gabler v. Gabler, 72 Nev. 325, 304 P.2d 404. ¹

The lower court...