State Ex Rel. Jones v. Second Judicial District Court Ex Rel. County of Washoe ( 1939 )

ON PETITION FOR REHEARING January 31, 1940. 98 P.2d 342. OPINION Petitioner seems to take the view that our decision in this case (59 Nev. 460, 96 P.2d 1096) in effect reverses rules heretofore laid down by this court, and which have been in force for thirty years. But this court, a little over eight years ago, in an opinion written by Chief Justice COLEMAN, took pains to say that: "We do not wish to be understood as holding that a decree might not be modified as to the custody of children even if the authority to do so were not reserved. On this point we express no opinion." Elsman v. Elsman, 54 Nev. 20, at page 30, 3 P.2d 1071, at page 1072.

In the case of Silva v. Second judicial district court in and for Washoe County, 57 Nev. 468, 66 P.2d 422, the court did not pass on the question whether a district court can modify a divorce decree, insofar as it relates to the custody of minor children, in a case where jurisdiction to do so is not reserved in the decree.

1, 2. Counsel contends that we have overlooked well-established rules, including our own decisions, relative to the construction of provisos in statutes. We have not overlooked the general rule that the operation of a proviso is usually confined to the clause or distinct portion of the enactment which immediately precedes it. But, as stated in 59 C.J. at pp. 1088, 1089, "The cardinal rule that, in construing statutes, the court must ascertain and give effect to the legislative intent applies to the construction of provisos." See, also, 59 C.J. 1090, sec. 640, citing State ex rel. Pittson v. Beemer, 51 Nev. 192,272 P. 656; 25 R.C.J. 986, n. 18.

3. Section 9462 N.C.L. 1929 was quoted in full in the original opinion. The first clause provides for the disposition of the minor children at the time of granting the divorce. To construe the proviso as being limited in its operation to the portion of said section following the first clause would be unreasonable because: First, such construction would make the proviso mere surplusage; second, it would authorize a change of custody of the minor children only when they are too young to dispense with the care of the mother or other female and have been or are likely to be taken or detained from her, or when they have been or are likely to be taken or removed by or at the instance of one of the parties out of the country, or concealed within the same. Except under these particular circumstances the trial court would thus be left without power, under the statute, to change the custody of minor children at the commencement or during the pendency of the suit. As the first clause of the section provides for the disposition of the minor children at the time of granting the divorce, the only reasonable interpretation of the proviso is to hold that it empowers the district court, upon good cause shown, to change the custody of the minor children after as well as before the decree, at any time during the minority of such children. Whether the death of one or both of the parents would make any change in this rule is a question not presented in this case.

The petition for rehearing is denied.