CARROLL VS. CARROLL (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Appeal by the plaintiff husband, from the judgment only, after the district court in his cruelty divorce action awarded the defendant wife $200 monthly separate maintenance on her counterclaim (which pleaded cruelty and adultery). Coleman, J. Held: (1) the plea in abatement based on the wife's previously instituted, pending separate maintenance action was properly disallowed - the husband's alleged cause of action had not accrued when that suit was filed; the defendant did not come into court of her own volition; a plea in abatement must go to the entire cause of action; the test is substantial difference in the relief sought (Whitman Co. v. Baker, 3 Nev. 387; 1 C.J. 45, 70, 82), and the prior-action plea applies only where the plaintiff in both suits is the same person, not to cross-suits by one who is defendant in the other suit; in any event the husband failed to prove the pendency of the former suit at trial. (2) The counterclaim failed to state a cause of action for separate maintenance: the allegation that the wife lacked sufficient income and that $500 per month was 'necessary' pleaded conclusions, not facts (Kelly v. Kelly, 18 Nev. 55; Kapp v. District Court, 31 Nev. 444; Western Union Tel. Co. v. Henley, 23 Ind. App. 14); facts such as age, health, and station in life must be pleaded, and a demurrer for insufficiency preserved the point without a motion to strike. (3) The propriety of the amount of an allowance is a question of fact not reviewable absent the evidence (Greinstein v. Greinstein, 44 Nev. 174). Judgment reversed.

In plain language

A husband sued for divorce on the ground of cruelty. His wife denied the charges and counterclaimed, accusing him of cruelty and adultery and asking for separate maintenance. The husband replied that she had already filed an earlier, still-pending separate maintenance suit raising the same claims, so her counterclaim should be 'abated' (paused or thrown out as duplicative). The trial court ruled for the wife and awarded her $200 per month in separate maintenance. The husband appealed from the judgment only. The Nevada Supreme Court rejected the husband's abatement argument: the rule against duplicative suits applies when the same person is the plaintiff in both cases, not when a defendant who was dragged into court raises the same matters to defend herself. But the court agreed with his second argument - the wife's counterclaim never properly pleaded a case for separate maintenance. Her pleading simply asserted that she lacked sufficient income and 'needed' $500 per month; the court held these were bare conclusions, not facts. A party seeking separate maintenance must plead the underlying facts showing necessity, such as age, health, and station in life. Because the counterclaim failed to state a cause of action, the separate maintenance judgment was reversed.