BATES VS. BATES (DIVORCE)

Key holdings

Practitioner summary

Appeal by the defendant wife from a Washoe County decree granting the plaintiff husband a divorce for extreme cruelty and from the finding rejecting her counterclaim for separate maintenance ($100 per month). Sanders, J. The wife pleaded a February 8, 1926 decree of judicial separation of the English High Court of Justice, Probate, Divorce and Admiralty Division (desertion for two years and upwards without reasonable excuse), rendered on constructive service on the nonappearing husband whose English domicile was alleged and unchallenged. Held: a decree of judicial separation (divorce a mensa et thoro) does not affect marital status and is terminable on reconciliation, but under Henderson v. Henderson, 3 Hare 100, and Harding v. Harding, 198 U.S. 317, a decree rendered with jurisdiction in personam over both spouses is conclusive as to the issues on which it is based, including every defense the respondent might have raised; the husband's cruelty allegations could have been pleaded in the English suit as a defense negativing desertion. Because the decree was pronounced by a court of the domicile and would bar a subsequent cruelty divorce in England, and a like Nevada judgment would receive reciprocal effect there, comity requires that it bar the husband's Nevada action for divorce on the ground of cruelty occurring prior to its rendition; the trial court erred in holding otherwise. The lead opinion additionally concluded the husband neither alleged nor proved acts amounting to legal cruelty. Ducker, C.J. and Coleman, J. concurred in the reversal solely on the ground that the English judgment is res judicata. Rehearing denied per curiam March 25, 1931.

In plain language

Herbert and Annie Bates, an English couple married in 1908, separated in Scotland in 1919 and never lived together again. In 1926 Annie obtained a decree of judicial separation from the English High Court of Justice on the ground that Herbert had deserted her for over two years; Herbert, then in Toronto, was served by mail and never appeared. Later that year Herbert moved to Reno, and in 1927 he sued Annie in Nevada for divorce based on extreme cruelty, describing years of alleged nagging, coldness, and insults. Annie denied the charges, pleaded the English separation decree as a defense, and counterclaimed for separate maintenance. The Nevada trial court granted Herbert the divorce. The Nevada Supreme Court reversed. Guided by deposition testimony from two English barristers, it concluded the English separation decree was rendered by a court of the parties' domicile with jurisdiction over both spouses, and that so long as it remains in force in England it would bar Herbert from getting a divorce there for cruelty that happened before the decree - and an equivalent Nevada decree would receive the same effect in England. As a matter of comity (and, in the view of two concurring justices, res judicata), the English decree therefore barred Herbert's Nevada divorce action based on pre-decree cruelty. The lead opinion also concluded the conduct alleged did not amount to legal cruelty in any event. A rehearing was denied in March 1931.