NAPOLITANI VS. NAPOLITANI (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

On the wife's appeal from a divorce granted to the husband, the court held the findings of cruelty, lack of provocation, and lack of condonation were supported by substantial (though conflicting) evidence, and thus would not be disturbed. On the comparative-rectitude assignment, the court applied NRS 125.120, which provides that when both spouses have been guilty of wrongs that may constitute grounds for divorce, the court shall not for that reason deny a divorce but may, in its discretion, grant a divorce to the party least in fault if both seek a divorce, otherwise to the party seeking the divorce even if that party is most at fault. Because the wife refused a divorce and sought only separate maintenance, and the husband was the only party seeking a divorce, the statute authorized granting him the divorce. The court traced the doctrine's history: recrimination arose from the clean-hands doctrine of equity, and the doctrine of comparative rectitude repudiated the strict recrimination bar (Blankenship v. Blankenship, 51 Nev. 356, 276 P. 9), followed by enactment of NRS 125.120 in 1931 and its 1957 and 1959 amendments (see Herrick v. Herrick, 55 Nev. 59, 25 P.2d 378; Jeffers v. Jeffers, 55 Nev. 201, 29 P.2d 351; Lamb v. Lamb, 57 Nev. 421, 65 P.2d 872; Gabler v. Gabler, 72 Nev. 325, 304 P.2d 404; Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98). The court found no abuse of discretion in applying the doctrine.

In plain language

Vincent and Regina Napolitani married in Las Vegas in 1960 after a brief courtship; it was a stormy, brief marriage. Vincent sued for divorce on the ground of extreme cruelty. Regina cross-claimed, seeking separate maintenance (not a divorce) rather than dissolution, citing religious beliefs, though she acknowledged there had been fault on both sides. The evidence showed both spouses had committed acts of cruelty (she struck him with a flatiron; he beat her badly enough to require hospitalization). The trial court granted Vincent a divorce. Regina appealed, arguing among other things that the court wrongly applied the doctrine of "comparative rectitude." The Nevada Supreme Court affirmed. It explained that Nevada's statute (NRS 125.120) changed the old "recrimination" rule (under which a plaintiff who was also at fault could be denied a divorce). Under the statute, when both spouses have been guilty of conduct that could be grounds for divorce, the court does not have to deny a divorce for that reason; instead it may grant a divorce to the party least at fault if both seek one, or otherwise to the party seeking the divorce even if that party is the one most at fault. Because Regina refused to seek a divorce and Vincent was the only one seeking it, the statute allowed the court to grant him the divorce, and there was substantial evidence of cruelty by Regina. The trial court did not abuse its discretion.