Wuest v. Wuest , 17 Nev. 217 ( 1882 )

By the Court,

Belknap, J.:

The first question presented by this appeal is, can a defendant in a divorce suit have affirmative relief ?

In England the jurisdiction of divorce cases was committed to the ecclesiastical courts.. Under the practice of these courts the parties were, says Mr. Bishop in his Commentaries on the Law of Marriage and Divorce (sec. 316, vol. 2), “ in effect both plaintiff' and defendant at the same time. So that, for example, one proceeded against for divorce a mensa et thoro, or for nullity of the marriage, or for restitution of conjugal rights, not only could bring forward a competent wrong done by the other party in defense of the suit, but, if .he succeeded in his proofs, he could have the proper sentence rendered in his favor, as though he were the original plaintiff.” (Best v. Best, 1 Ad. Ec. 411; Clowes v. Clowes, 3 Curt. Ec. 194.)

The law of marriage'and divorce, as administered by the ecclesiastical courts, is a part of the common law of this country, except as it has been altered by statutes. (Bishop on M. & D., vol. 1, sec. 71, 79; Le Barron v. Le Barron, 35 Vt. 365; J. G. v. H. G., 33 Md. 401.)

The statute of this state is silent as to the right of defendants to .affirmative relief. In the absence of express legislation upon the matter a defendant may have such relief as the practice of the English courts would have afforded him, upon the ground that such practice has been adopted as part of our law.

The next objection - arises upon the order made by the district court awarding all of the property of the plaintiff to the defendant, and requiring plaintiff to pay twenty dollars per month for the support of an infant child, the issue of the marriage. • ■

This objection embraces the question of the competency of the district court to make a division of the separate property of a guilty husband. The divorce was granted upon the ground of extreme cruelty, and it is claimed that, because the relief was granted upon a ground other than conviction for a felony or for adultery, the court could only set apart for the use of the wife during her lifetime, or while she remained sole, a portion of her former husband’s estate, but could not.pass the property absolutely to her. The claim is based upon a construction sought to be placed upon section 27 of the divorce act (sec. 220, Comp. Laws), which is as follows: “When the marriage shall be dissolved by the husband being sentenced to imprisonment, and when a divorce shall be ordered for the cause of adultery committed by the husband, the wife shall be entitled to the same proportion of his lands and property as if he were dead; but in other cases the court may set apart such- portion for her support and the support of their ■children as shall be deemed just and equitable.” * * *

' If. this language is obscure, other provisions of the statute clearly show the intention of the legislature.

Section 23 of the act provides that compulsory process may be employed to obtain the appearance or answer of a defendant, “if it be necessary to the disposition of property;” and section 25 declares that, “in granting a divorce, the .court shall also make such disposition of the property of the parties as shall appear just and equitable, having regard to the respective merits of the parties, and to the condition in which they will be left by such divorce, and to the party .through, whom the property was acquired, and to the burdens imposed upon it, for the benefit of the children. And all property and pecuniary rights * * * not otherwise disposed of or1 regulated by the order of the court shall, by such divorce, be divested out of the guilty party, and vested in the party at whose instance the divorce was granted.”’

This language manifestly intended to confer upon the court power to make air equitable division of the property. In the argument, stress was laid upon the words of the statute, “the court may set apart such portion for her support,”.as showing an intention that a use shall be created out of the property for her benefit. The words “ for her support,” as thus used, show the purpose of the statute in making a division of the property to be to provide a support for an injured wife, and to this extent furnish a guide for courts in disposing of the property.

It is further claimed that the court abused its discretion in awarding all of the property to respondent, and requiring plaintiff' to provide for the support of the infant child. The record does not contain any other evidence of the value of the property than this: It is alleged in the answer that the property is of the value of fifteen hundred dollars, and it is shown that upon the trial defendant testified to the truth of all of the allegations contained in her answer. Beside this- the-decree shows that appellant had recovered moneyed judgments, against 'different parties, but there is nothing to show the ability of the judgment debtors to pay.

The statute contemplates' that the division of property shall be graduated among other matters by the quality of the offense of- .the delinquent. Upon this point the evidence was. not brought up, but enough is disclosed by the record to lead us to the conclusion that the husband’s offense was of an aggravated character. At all events it is impossible for us to-say, without a better understanding of the merits-of the case or the value-of the property than' can be acquired from this-record, that in the matters suggested, the court did not exercise a sound discretion.

After having awarded all of the property to the wife, the district court, by its decree, required appellant to pay the sum of three hundred dollars as counsel fees, to the attorneys for the respondent.

Appellant is a harness maker, and his income from his trade is very moderate. Under the circumstances, no allowance for counsel fees should have been made.

The cause must be remanded, with instructions to the district court to modify its decree by striking out the allowance of the sum of three hundred dollars as counsel fees.

In all other respects the judgment is affirmed, with costs.