D'ERRICO VS. D'ERRICO (DIVORCE)

Key holdings

Practitioner summary

Decision on rehearing (granted September 13, 1929) of D'Errico v. D'Errico, 51 Nev. 363, 276 P. 530 (1929). The plaintiff husband's petition urged that the res judicata ruling eliminated only the original complaint and that the decree rested solely on the supplemental complaint. Held, adhering to the former opinion: although under the statute (sec. 5076, Rev. Laws, was urged by respondent) a court may in a proper case permit a supplemental complaint alleging misconduct occurring after the filing of the original complaint in a divorce action, a plaintiff may not set up in a supplemental complaint subsequently occurring facts upon which a divorce might be granted without reference to the original complaint (19 C.J. 119, sec. 311). The trial court, having found the defendant's plea of res judicata based on the Ohio decree sustained as to the original complaint, erred in granting a divorce on the supplemental complaint alone; the supplemental bill - which alleged the Cleveland conduct was but a continuation of the defendant's general attitude during practically fifteen years - was filed in aid of the original complaint, and the defeat of the original complaint carried the supplemental complaint with it. Alternatively, if the case was tried on the theory that the supplemental complaint stated an independent cause of action, both parties being guilty of matrimonial offenses constituting grounds for divorce, neither is entitled to relief (Blankenship v. Blankenship, 51 Nev. 356, 276 P. 9). Randall v. Randall, 203 Cal. 462, distinguished. Judgment and order denying new trial again reversed and cause remanded.

In plain language

This is the second Nevada Supreme Court decision in the D'Errico divorce fight, issued after the court granted the husband a rehearing of its 1929 ruling (reported at 51 Nev. 363). Joseph D'Errico had lost a divorce case against his wife Maria in Ohio, where the court instead awarded her separate maintenance. He then moved to Reno and sued for divorce again. The Nevada trial court found that the Ohio judgment barred the claims in his original complaint, but granted him a divorce anyway based on a 'supplemental complaint' describing his wife's harassment of him in Cleveland after the Nevada suit was filed. The Supreme Court had reversed, and on rehearing it reversed again. The court adhered to its original holding: while a supplemental complaint alleging misconduct occurring after the original filing may be permitted in a proper case, a plaintiff cannot use it to win a divorce on an entirely new, after-arising cause of action once the original complaint has been defeated. Here the supplemental complaint itself said the new conduct was just 'a continuation' of the wife's attitude over fifteen years, so it stood or fell with the original complaint, which the Ohio judgment barred. The lead opinion added that if the case were instead viewed as presenting an independent new claim, the other justices were right that both spouses were guilty of marital offenses, and under the recrimination rule announced in Blankenship v. Blankenship neither could get a divorce. The judgment was again reversed and the case sent back.