Irving_vs_Irving

IRVING v. IRVING OPINION In this case of first impression, the court addressees the level of proof required to establish fraud to obtain an annulment under NRS 125.340(1).   It is concluded that fraud must be proved by clear and convincing evidence.   In this case, the record does not prove or contain substantial evidence supporting by clear and/or convincing evidence., the decision was reversal of the district court's order to annul the parties marital union. FACTS After meeting through a pen pal service, appellant Beatriz S. Irving, who resided in the Philippines, and defendant Gilbert J. Irving, who resided in the United States, wrote one another love letters and shared telephone calls for nearly ten years. Gilbert visited Beatriz in the Philippines on two occasions.   After the first visit, Gilbert was informed by Beatriz that she had been pregnant with his child but that she had miscarried.   In 2002, Gilbert got government approval for Beatriz to immigrate to the United States to be with him. At which time they married shortly thereafter. From June 2002 to October 2002, they lived together as husband and wife. Beatriz never became pregnant by Gilbert despite the couple's efforts to conceive. In October 2002, Beatriz after being diagnosed with tuberculosis moved out of the couples residence, partly because Gilbert was concerned that the disease was contagious and he would become ill. In November 2002, Gilbert filed a complaint for annulment, making allegations that his consent to marry Beatriz was coerced by fraud because Beatriz had misrepresented that she wanted to conceive a child with him. After a bench trial, the district court noted that the case was “close” but ordered an annulment for fraud based the findings that Gilbert had relied on Beatriz's claims that she would conceive a child.  DISCUSSION Burden of proof:  fraud The higher determining that Gilbert was entitled to an annulment on the basis of fraud under NRS 125.340(1), the district court never established the evidentiary burden of proof that Gilbert was required to satisfy. Beatriz’s argument is that Gilbert was required to prove fraud by clear and convincing evidence and did not meet that burden.  The marriage was annulled by the ruling of the higher court. NRS 125.340 Cause for annulment: Fraud. 1. If the consent of either party was obtained by fraud and fraud has been proved, the marriage shall be void from the time its nullity shall be declared by a court of competent authority. Reference: Statsky, W. P. (2004). Family law: The essentials 2nd edition: Delmar: Cengage Learning. “2010 Nevada Code TITLE 11 DOMESTIC RELATIONS Chapter 125 Dissolution of Marriage NRS 125.340 Cause for annulment: Fraud”, Unknown, (2010) retrieved from: http://law.justia.com/codes/nevada/2010/title11/chapter125/nrs125-340.html “IRVING v. IRVING Beatriz S. IRVING, Appellant, v. Gilbert J. IRVING, Respondent. No.44142. May 25, 2006” Unknown, (2006) retrieved from: http://caselaw.findlaw.com/nv-supreme-court/1109123.html