D'ERRICO VS. D'ERRICO (DIVORCE)

Key holdings

Practitioner summary

Appeal by the defendant wife from a Washoe County judgment granting the plaintiff husband a divorce and from the order denying her new trial motion; trial to the court without a jury. Sanders, J. The husband's June 15, 1925 Ohio petition was dismissed and the wife granted separate maintenance under the Ohio statute, the judgment determining in effect that the husband willfully deserted her on April 27, 1925. His January 25, 1927 Nevada complaint pleaded substantially the same matter as constructive desertion; the wife pleaded the desertion as a recriminatory defense and the Ohio judgment roll as bar and estoppel. The trial court found the res judicata defense sustained as to the original complaint yet granted a divorce on the supplemental complaint's allegations of the wife's post-filing nagging and annoyance of the husband in Cleveland. Held: a supplemental complaint is merely an addition to the original bill, the two constituting one record; the new matter could not change the cause of action, admittedly barred by the Ohio judgment, and was pleaded to characterize the previously adjudicated relations (2 Bishop on Divorce sec. 657). The defeat of the original and only cause of action by the res judicata plea carried the supplemental complaint with it. Pease v. Pease, 47 Nev. 124, distinguished. Alternatively, a new cause of action arising after institution of suit cannot be prosecuted by supplemental bill, since the cause of action must exist when suit is brought (Schwab v. Schwab, 96 Md. 592). Ducker, C.J. and Coleman, J. concurred for the reasons given and additionally on the authority of Blankenship v. Blankenship, 51 Nev. 356, both parties having been guilty of matrimonial offenses. Reversed and remanded with directions to dismiss. Rehearing granted per curiam September 13, 1929; on rehearing the court adhered to this decision and again reversed, D'Errico v. D'Errico, 52 Nev. 353, 287 P. 445 (1930).

In plain language

Joseph D'Errico sued his wife for divorce in Ohio in 1925, claiming her misconduct forced him to leave. He lost: the Ohio court dismissed his petition and instead granted the wife separate maintenance, effectively determining that he was the one who wrongfully deserted her in April 1925. He then moved to Reno and in January 1927 filed a Nevada divorce suit based on essentially the same facts, framed as 'constructive desertion.' While the case was pending he went back to Cleveland temporarily, where (he alleged) his wife followed him around, chased him in and out of buildings, and harassed him. He returned to Reno and filed a supplemental complaint describing that new conduct. The Nevada trial court found that the Ohio judgment barred his original complaint, but granted him a divorce anyway based on the supplemental complaint. The Nevada Supreme Court reversed. A supplemental complaint is just an addition to the original one - the two make a single record - so the new Cleveland allegations could not create a fresh cause of action independent of the original complaint that the Ohio judgment barred. By the supplemental complaint's own words, the new conduct was merely 'a continuation' of the wife's attitude over fifteen years, pleaded to give color to the barred claims. And a brand-new cause of action arising after a suit is filed cannot be prosecuted by supplemental complaint, because a cause of action must exist when suit is brought. Two justices also concurred on the ground that both spouses were guilty of marital offenses, so under the recrimination rule of Blankenship v. Blankenship (decided the same day) neither could obtain a divorce. The case was remanded with directions to dismiss - though the court later granted a rehearing, and in 1930 again reversed (52 Nev. 353).