ROBERTSON VS. ROBERTSON (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Wife appealed from a judgment for the husband, after a bench trial, in her action for breach of an August 30, 1915 written agreement made during the pendency of his divorce action, by which she covenanted not to seek alimony, maintenance, costs, or attorney fees in the divorce action and to make no demand for any property of the parties, in consideration of his promise to pay $3,000 at $50 monthly (acceleration on thirty days' default; payments ceasing on her remarriage; his defenses limited to full payment). The complaint conceded receipt of the $100 acknowledged in the contract plus $75 more, leaving $2,825 claimed with 7 percent interest from November 6, 1915. The husband took a default divorce; on February 28, 1916, before commencing the contract action, the wife moved to vacate the decree, tendering a verified answer praying travel expenses and maintenance during the pendency of the action and general equitable relief, specifically asking attorney fees and suit money, and alleging community property worth many thousands of dollars; the motion remained pending and undismissed. Held: the contract's subject matter was the community property rights, the $3,000 standing in lieu of her community interest; the vacatur motion and answer constituted a demand for suit money and, through the property allegations and equitable prayer, for a division - breaching the covenant even though a court order would still be required to open the case. Independently, the remedies were inconsistent, and the definite adoption of one inconsistent remedy with knowledge of the material facts irrevocably bars the alternative (7 Ency. Pl. & Prac. 364; 15 Cyc. 262); conclusiveness of the election does not depend on the elected remedy's chance of success. Her renunciation released the husband from the covenant restricting his defenses. Judgment affirmed (Sanders, J., not participating); rehearing denied per curiam.

In plain language

While a husband's divorce suit was pending, the couple signed a written contract on August 30, 1915: the wife agreed not to ask the divorce court for any alimony, costs, or attorney fees and to make no demand for the parties' property, and in exchange the husband would pay her $3,000 in $50 monthly installments, with the whole unpaid balance falling due if he defaulted for thirty days. The husband then obtained a default divorce. Beyond the initial $100 acknowledged in the contract, he paid $75 more and stopped. But instead of suing on the contract, the wife first moved on February 28, 1916 to set aside the divorce decree, filing a proposed answer asking for attorney fees, travel money, maintenance during the action, and equitable relief, and alleging the community property was worth many thousands of dollars. With that motion still pending, she then sued on the contract for the $2,825 balance. The trial court gave judgment for the husband, and she appealed. The Nevada Supreme Court affirmed. Her attempt to reopen the divorce and litigate support and property was itself a demand for exactly what she had promised not to seek, so she breached the contract. Independently, the two remedies were inconsistent - she could not both reclaim her share of the community property in the divorce case and collect the $3,000 that was the agreed price for giving up that share - and having chosen the first remedy with full knowledge of the facts, she was barred from the second. Her renunciation also released the husband from his covenant limiting him to the defense of full payment.