ON THE MERITS November 2, 1949. 211 P.2d 252. *Page 84 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 85 OPINION Respondent instituted suit against appellant in the District Court of the Second Judicial District, in and for the County of Washoe, to obtain a decree dissolving the bonds of matrimony. Appellant has appealed from an adverse judgment and from an order denying her motion for a new trial.
The respondent, in his complaint filed on March 8, 1948, alleged that "since the marriage plaintiff and defendant have lived separate and apart for more than three consecutive years, without cohabitation, immediately preceding the commencement of this action." This the appellant denied in her answer.
The evidence establishes that respondent and appellant were married in Detroit, Michigan, on the 30th day *Page 86 of April 1937, and lived together for a period of approximately six years. During the major part of that time the husband was employed by the Caye Construction Company. The husband entered the United States Navy in June 1943, and respondent and appellant continued to live together as man and wife until August 1943, when the husband was sent to an over-seas station in Trinidad. After he left the United States, the appellant returned to reside at the home of the parties, and remained there until November 1943, when she moved to Washington, D.C., to work for the United States government.
After the respondent had been stationed in Trinidad for approximately a year, he returned to the United States in August of 1944, and was at that time given leave for twenty to thirty days. After this leave the husband was sent to the Naval Station at Norfolk, Virginia, for re-assignment, and while there received orders transferring him to duty in the Pacific area. This occurred early in the month of November 1944. Before reporting to his new assignment in the Pacific area, the husband was given several days' leave. It is uncontradicted that while stationed at Norfolk, Virginia, the respondent wrote his wife a letter stating that he desired a divorce. The testimony of the parties is in conflict as to whether his attitude persisted after his re-assignment and during the few days' leave before reporting for duty in the Pacific area. Briefly, it was the testimony of the respondent that he continued to impress upon the appellant his desire for a divorce, and that certain preliminary arrangements were made with a firm of attorneys. It was the appellant's testimony that prior to his departure for the Pacific, the parties were reconciled and that, in fact, no separation occurred until the respondent's return from the Pacific area about a year later.
The appellant has assigned as error the granting of *Page 87 a decree of divorce upon the ground alleged in respondent's complaint. The appellant maintains that for the period of one year, while respondent was on duty with the United States Navy in the Pacific, the parties were compelled to live apart. This statement of the assignment assumes that the respondent and appellant had not separated prior to respondent's departure for the Pacific area. But if it was unnecessary under the statute to prove a separation occurred prior to respondent's reporting for duty in the Pacific area, we can dispose of the question by ascertaining whether the prescribed period elapsed. Thus for the first time in this court it has become necessary to construe the statute providing for this ground for divorce, as to that point.
Appellant's interpretation of the statute providing for this cause for divorce (State. 1931, c. 111, p. 180, as amended, Stats. 1939, c. 23, p. 16) is that to make out a case under the statute the plaintiff, in addition to the other proof required by the statute, must show that the separation of the parties resulted from the voluntary act of the parties, with the intent to bring to an end the marital relation. Appellant proposes this construction of the statute as preferable to the view that the trial judge may grant a divorce upon this ground when a showing has been made that the parties lived apart for the prescribed length of time, and without taking into consideration the cause of their so living apart. In arguing the question, the parties, and we at all times, assume that the prescribed period of three consecutive years has elapsed, and that the trial judge has exercised his discretion in determining whether the best interests of society and the parties will be served by granting a divorce.
1, 2. We agree with the appellant's interpretation of the statute to the effect that to make out a case for a divorce upon this ground the separation must result from the voluntary and intentional act of at least one *Page 88 of the parties. The separation may result from the refusal of one of the parties to live with the other, although such separation need not necessarily be with the intention to bring the marriage to an end by a divorce.
The parties must live apart for the prescribed period as the consequence of a separation. The fact that one of the parties has been obliged by his business, or compelled by his government because of military duty, or, for some other reason, to live apart from his spouse for the required period of time does not entitle him to any relief under our statute. This circumstance does not result in the separation of the parties as we define it, unless such business or obligation to the government is undertaken with the avowed purpose of separating from a spouse. The verb "to separate" means to part from each other. The status exists whenever the marital association is severed or when married persons intend to live apart because of their mutual purpose to do so, or because one of the parties, with or without the acquiescence of the other, intends to disrupt the marital relationship. One does not "separate" from his spouse, in the sense of disrupting the marriage, by being called to duty in the armed forces, or by being called away on business.
We think this interpretation conforms with what has heretofore been expressed by this court as the purpose and policy of the statute. Herrick v. Herrick, 55 Nev. 59, 25 P.2d 378; George v. George, 56 Nev. 12, 41 P.2d 1059, 97 A.L.R. 983. It is also in accord with the only statement on the point which we have been able to find in a sister jurisdiction having a similar statute. Otis v. Bahan, 209 La. 1082, 26 So. 2d 146, 166 A.L.R. 494.
This result has been implied by this court in the case of George v. George, supra, 56 Nev. at page 17, 41 P.2d at page 1060, 97 A.L.R. 983, where the court approved the following statement: "`It is evident that the conjugal life and the family life of the parties are permanently disrupted. There is no inclination for and no *Page 89 prospect of a reconciliation. Nothing is left of the marriage relation but the legal tie.'" It is manifest that there can be no reconciliation unless there has been disagreement and separation.
Appellant argues that if we accept her view of the statute, on the point just discussed, then respondent's complaint should be dismissed. It is asserted that the proof shows that for the first year respondent and appellant were living apart, the respondent was away from home on duty with the United States Navy. The respondent contends, on the other hand, that the evidence shows that in the brief interval he was at home on leave, and before his departure for duty in the South Pacific, the parties "separated," that respondent made it clear to appellant that he intended and contemplated a divorce.
3. If this is simply a matter of resolving a conflict of evidence on a fact, material to the issues, we would refer the appellant to the rule that conclusions reached as to the facts by the trial court upon conflicting testimony are conclusive upon this court on appeal. CutRate Drug Co. v. Scott Gilbert Co.,54 Nev. 407, 20 P.2d 651; Ward v. Scheeline Banking Trust Co.,54 Nev. 442, 22 P.2d 358; Butzbach v. Siri et al., 53 Nev. 453, P.2d 533. The appellant insists, however, that on her motion to modify the findings of fact and conclusions of law, the trial court was specifically requested to make a finding as to whether there was voluntary separation in the year 1944, or whether the parties lived apart for a year as a result of respondent's being called away on duty.
We have already noted that the respondent stated his cause of action in the words of the statute and in her answer the appellant denied this allegation. The finding of the court on this point reads: "That since said marriage plaintiff and defendant have, for a period of more than three consecutive years immediately preceding the filing of the complaint, which is dated March 8, 1948, lived separate and apart without cohabitation. This *Page 90 Court finds that said plaintiff and defendant have not cohabited, nor have they lived together under the same roof, nor have they been together as husband and wife, for a period of more than three consecutive years immediately preceding the filing of the plaintiff's complaint, namely, since the month of November, 1944; and that there is no advantage in continuing this marriage any further; that nothing is left of the marriage relationship but the legal ties. The conduct of the parties, by living separate and apart for more than three consecutive years without cohabitation, has made it impossible for them to live together in happiness, and the best interest of the parties and the state is promoted by granting of a divorce. The family life of the parties has been permanently disrupted; there is no prospect of a reconciliation; and there is no probability of their living together in such manner as to be to their best interest and the best interest of society."
When a party to an action proposes that the court make a finding on a fact such as this, his request must be made in the manner prescribed by section 9385.65, 1931-1941 Supp. In this instance the appellant protests that the findings are insufficient to support the judgment and decree, because it nowhere appears that the court made a finding that there was a voluntary separation in 1944. Yet we have examined the appellant's proposed findings and proposed modification of respondent's findings and cannot find where in accordance with the statute such a deficiency, if any there is, was called to the court's attention. It is true the appellant noticed a motion to modify findings of fact and therein in at least sixteen instances averred the findings were deficient. In not one of these instances has the appellant suggested that the findings were such as would not support a judgment because of omission of a material fact. In every instance, on the contrary, the appellant alleges the findings are deficient because the court failed to find facts favorable to appellant's case.
4-6. It is the duty of this court to presume that the *Page 91 findings of the lower court have been such as will support the judgment. Edwards v. Jones, 49 Nev. 342, 246 P. 688. We are satisfied that the findings do support the judgment. To be consistent with our expression above that to separate means more than to live apart, we must hold that in the finding of the court that "for a period of more than three consecutive years immediately preceding the filing of the complaint, which is dated March 8, 1948, lived separate and apart without cohabitation," implies a voluntary act of at least one of of the parties. We find further support of this view in the expression, "the conduct of the parties living separate and apart," and in this expression, "There is no prospect of reconciliation," We hold, therefore that not only did the appellant fail to make this point to the trial court in the manner prescribed by statute, but that in fact there is language which clearly indicates the court made a finding that the parties separated prior to respondent's departure for the Pacific area on military duty.
The appellant's next assignment of error is that the court was in error in refusing appellant's prayer for separate maintenance in view of respondent's failure to sustain his cause of action. Appellant admits that this assignment is based upon the assumption that the respondent failed to establish his cause of action. Thus, we have already disposed of this assignment of error.
The next assignment is that the court committed error in admitting into evidence, over proper objection, the affidavit of Edna C. Tourjee, for the purpose of establishing that the respondent was no longer the owner of certain stock. This affidavit had been introduced on a motion for allowances, attorney's fees and costs, and was, therefore, an ex parte affidavit. Issues had been joined by the pleadings as to whether the respondent was, or was not, the owner of said stock.
7. We agree with the appellant that an ex parte affidavit is not competent as evidence if it is offered for the purpose of proving the existence of the facts it recites, *Page 92 in a trial upon the merits of the cause. It is, as appellant states, a basic rule of evidence that except in special proceedings, provided for by statute or rule of the court, relevant and material facts, if established by testimony, must be proved by testimony given in open court, or by deposition taken so that in any event the other party is accorded the opportunity to cross-examine the witness. Judd v. Letts, 158 Cal. 359,111 P. 12, 41 L.R.A., N.S., 156; Graham et ux. v. Smart et al., 42 Wash. 205,84 P. 824; 2 C.J.S., affidavits, sec. 28 (2), page 985.
8, 9. The appellant has not satisfied us, however, that this error had such a prejudicial effect as to require reversal. Where incompetent evidence is admitted in a trial of the cause by a court sitting without a jury, reversal is only warranted when it is apparent from the record that competent evidence was insufficient to support the judgment, or, when it is affirmatively shown that the improper evidence affected the result. Rehling v. Brainard, 38 Nev. 16, 144 P. 167, Ann.Cas. 1917C, 656.
The appellant has not pointed out to us, and an examination of the transcript does not reveal, the manner in which this affidavit affected the result. The trial court, in ruling on the objection, pointed out that everything set forth in the affidavit was already in evidence, except one fact which we do not find material to the issue. We go further and state that the facts set out in the affidavit were testified to by the respondent, and his testimony was not discredited by cross-examination or contradicted by other competent evidence.
10. A review of all of the briefs and the oral arguments in the appeal make it clear that the entire matter (concluding, as we have, that in order to start the three year statute running, there must be a separation in the sense of a disruption of the marriage relationship through the intentional act of at least one of the parties) turns upon the factual determination of what occurred at and about the time of the separation. Despite the *Page 93 bitter and perhaps justified denunciation by appellant of respondent's testimony, it does not lie with us to say that the trial court should have accepted the evidence adduced by appellant. In this connection appellant contends that the trial court did not necessarily accept the testimony of respondent, for the reason that the trial court's theory of the law was that three years' separation authorized a decree of divorce in the court's discretion despite the fact that the first year's separation of such three years was without any intention on the part of either party to disrupt their relationship. We do not, however, find this contention borne out by the record.
As all assignments of error have been dealt with specifically or covered by this court in this opinion, the order should be that the judgment and decree, and the order denying the new trial be affirmed, and that the respondent pay all costs not heretofore ordered paid by him.
HORSEY, C.J., and BADT, J., concur.
EATHER, J., being absent on account of illness, the Governor designated Hon. TAYLOR H. WINES, Judge of the Fourth Judicial District, to sit in his place. *Page 94