Johnson v. Johnson

484 P.2d 1072, 87 Nev. 244, 1971 Nev. LEXIS 400
CourtNevada Supreme Court
DecidedMay 17, 1971
DocketNo. 6301; No. 6302
StatusPublished
Cited by5 cases

This text of 484 P.2d 1072 (Johnson v. Johnson) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Johnson, 484 P.2d 1072, 87 Nev. 244, 1971 Nev. LEXIS 400 (Neb. 1971).

Opinion

[245]*245OPINION

By the Court,

Batjer, J.:

We have heretofore ordered these cases to be combined for our consideration. To the extent that the briefs on file are relevant and material they are being considered in both cases.

On April 26, 1967, the appellant and Basil Alvin Johnson, [246]*246the natural parents of Susie DeeLin Johnson, consented in writing to the appointment of Alta Smith Johnson, the child’s paternal grandmother, as her guardian. Subsequently, in October of 1969, the appellant and Basil Alvin experienced marital difficulties which culminated in divorce proceedings being commenced by him.

During the pendency of the divorce proceedings the appellant filed a petition to terminate the guardianship. In the divorce proceedings the trial court granted the appellant a divorce and found her to be a fit mother to have the custody of the other four children of the marriage, but later denied her petition to terminate the guardianship.

In her attack upon the decree of divorce, the appellant contends that the trial court committed reversible error when it only awarded her custody of the four children and failed therein to also award her custody of Susie DeeLin. She also contends that the decree erroneously allowed Basil Alvin the right of visitation every other week instead of every other weekend as reflected in the minute order of the district court.

At the time that the divorce action was heard and judgment entered, there was in full force and effect an order of the Eighth Judicial District Court of the State of Nevada in and for the County of Clark appointing Alta Smith Johnson the guardian of the person of Susie DeeLin. Until such time as that order appointing the guardian might be set aside by a court of appropriate jurisdiction or until it was extinguished by the operation of law, any independent action to award custody of Susie DeeLin to the appellant or anyone else would be precluded. Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964).

Basil Alvin has not controverted the appellant’s assertion that he should be allowed child visitation only every other weekend rather than every other week. He has waived the filing of an answering brief and has offered to stipulate “to cure the typographical error occurring in the decree of divorce heretofore entered.” This appears to be a clerical mistake which may be corrected within the scope of NRCP 60(a).1

In her attack upon the order denying her petition to terminate the guardianship of Susie DeeLin, the appellant asserts [247]*247that finding her fit to have custody of the other four children compels reversal of that order of the trial court. The appellant also contends that the original proceedings upon the petition for the appointment of a guardian for Susie DeeLin was defective inasmuch as the lower court lacked jurisdiction to determine the matter because there was no specific finding that the appointment was “necessary and convenient.”

The appellant mistakes a requirement of proof for an element of jurisdiction. In matters of guardianship the district courts derive their jurisdiction directly from the Nevada Constitution, Art. 6, § 6,2 and NRS 3.210.3 Jurisdiction does not depend upon a showing of necessity and convenience. Here the trial court not only had the written consent of both natural parents, but the appellant as well as Susie DeeLin and her paternal grandmother were physically present in the court when the order appointing the guardian was entered. The jurisdiction of the district court is beyond question. If the appellant had ever intended to attack the sufficiency of the evidence supporting the order appointing the guardian she was required to launch that attack within the times prescribed by the pertinent statutes and rules or be forever barred.

On March 4, 1970, after several hearings, the trial court “for good cause” specifically denied the petition by the appellant to terminate the guardianship of Susie DeeLin. The fact [248]*248that the trial court, in the divorce proceeding, found the appellant to be fit to have the custody of the other minor children of the parties did not, as a matter of law, compel that court to terminate the guardianship of Susie DeeLin. We do not have a transcript of those hearings nor a statement of the evidence (NRCP 75 (n))4 so we must presume that the trial court found the presumption of parental preference to have been overcome. NRS 125.140(1); NRS 159.050; McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970); Hesse v. Ashurst, 86 Nev. 326, 468 P.2d 343 (1970). A party who is financially or otherwise unable to provide this court with a transcript of a hearing or trial in the lower court is not without a remedy. NRCP 75 (n) allows an adequate alternative to an actual transcript of the proceedings. Here the appellant has failed to avail herself of the benefits of that rule. The record filed with this court contains only the court minutes of the hearing of the divorce complaint as well as the hearings on the petition to terminate the guardianship. Without a complete transcript of the testimony taken at those hearings or a statement of the evidence or proceedings we have no basis upon which to review the propriety of the trial court’s ruling. It is an established rule of this court that findings, if they are within the issues raised by the pleadings, must be presumed to have been supported by the evidence presented to the lower court when there is no record of testimony upon which to predicate any other determination. (This rule of law is conceded by the appellant in her brief.) Quinn v. Quinn, 27 Nev. 156, 74 P. 5 (1903); Wilson v. Wilson, 23 Nev. 267, 45 P. 1009 (1896); Burns v. Rodefer, 15 Nev. 59 (1880).

In Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970), we said: “It has long been the law in this state that where findings of fact are within issues raised by pleadings, and there is no record of testimony which can be considered, the appellate court must presume that the evidence was sufficient to justify the findings. . . . ‘Any fact necessary to support the order [249]*249is presumed to have been proven in the absence of an affirmative showing to the contrary.’ ” In Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970), we said: “A trial judge has wide discretion in all cases involving the care, custody, maintenance and control of a minor child, and his exercise of discretion will not be disturbed on appeal unless there is a clear case of abuse.” Futhermore, in Brown v. State, 81 Nev. 397, 404 P.2d 428

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Eighth Judicial District Court
677 P.2d 1044 (Nevada Supreme Court, 1984)
Revello v. Revello
606 P.2d 933 (Idaho Supreme Court, 1979)
UTE, Inc. v. Apfel
518 P.2d 156 (Nevada Supreme Court, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
484 P.2d 1072, 87 Nev. 244, 1971 Nev. LEXIS 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-johnson-nev-1971.