Lowrance v. Lowrance

OPINION

By the Court,

Gunderson, J.:

The record shows that after summons and a complaint for divorce were served on the appellant wife, the respondent husband received her back into the marital home, and when asked what he intended to do about his action against her, said merely: “You will find out in time.” After having marital relations with her the night of November 17, 1969, respondent obtained a default decree of divorce on November 18, awarding him all the parties’ community property, and custody of their minor children, who were 9, 7 and 3 years of age. Respondent returned home early in the morning November 19, went to bed and had marital relations with appellant, then told her when they arose: “The divorce decree is now final.” He thereupon ordered her from the marital home, with her three other minor children from a prior marriage. While it appears she did not consult an attorney concerning the matter for some three months thereafter, it also clearly appears she is not a legally sophisticated person, and her uncontroverted testimony shows she was totally without any funds to employ counsel when respondent apprised her of his actions. When she ultimately sought advice, her present counsel undertook to represent her without a retainer, and brought a motion to set aside the decree on grounds of surprise and excusable neglect. The lower court denied this motion in its entirety.

Unquestionably, the record establishes meritorious grounds to set aside the decree, as stated in appellant’s motion. NRCP 60(b); Cipolla v. Cipolla, 85 Nev. 43, 449 P.2d 258 (1969). While respondent’s counsel have made no serious attempt to question this, they suggest relief is precluded by her delay in moving for relief, and by her remarriage while her motion was pending.1

Concerning the delay, to find “laches,” “estoppel” or “waiver” a bar would, we think, in the circumstances of this case, “reduce the judicial process to a mockery.” Cipolla v. Cipolla, 85 Nev. 43, 44, 449 P.2d 258, 259 (1969). As to her remarriage, it is apparent to us that appellant accepted no benefits from those portions of the decree that deprived her of her parental and property rights; thus, we perceive no reason why her remarriage should bar her from obtaining relief insofar as the decree operated against those rights. Cf. Lopez v. Lopez, 408 P.2d 744 (Cal. 1966); Siler v. Siler, 350 P.2d 510 (Okl. 1960); 2A Nelson on Divorce and Annulment, § 20.11 (2nd Ed. 1961).

The court erred in not setting aside those portions of the decree of divorce concerning the parties’ property and custody rights. In these regards, the court’s order denying appellant’s motion is reversed.

The cause is remanded, with instructions to determine appellant’s application for preliminary attorney’s fees, and to decide, as matters of first impression, the distribution of the parties’ property and the custody of their minor children.

Zenoff, C. J., Mowbray and Thompson, JJ., concur.

1 At oral argument, respondent’s counsel was questioned as follows:

Court: “. . . [A]t least, Mr. Diehl, by the record before us, which is to say the same record as was before the lower court, the facts would substantially be as stated by Mr. Halley, would they not?”

Respondent’s Counsel: “Yes, we presented no evidence in opposition to those facts, which we could have done but did not do so because of the remarriage and these facts that came to light at this time.”

Court: “Well, now, that being the case, it would appear that there was not only excusable neglect but was in fact fraud on the lower court, isn’t that true?”

Respondent’s Counsel: “Again, on the record, yes, I would say if we accept all the facts as true, this may be the case.”