ROSENBAUM VS. ROSENBAUM (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

Two issues were presented: whether the earlier Missouri divorce trial was res judicata of the Nevada action, and whether the district court erred in refusing to consider the husband's earning capacity and the availability of higher-paying employment in his prior occupation. On res judicata, the court held that the defense requires identity of causes of action, the true test being the identity of the facts essential to their maintenance, and that when the same evidence supports both the present and former cause of action, the causes are identical. Silverman v. Silverman, 52 Nev. 152, 169-70, 283 P. 593 (1930). Because the wife offered no transcript, findings, or decree from Missouri, and the record did not show the grounds on which the Missouri action was tried or decided (the husband's testimony being limited to events after the Missouri decree), there was no identity of causes of action and no error. Koch v. Koch, 62 Nev. 399, 152 P.2d 430 (1944). On the support award, the court recognized the district court's statutory and common-law discretion in awarding and fixing alimony and child support under NRS 125.140 and NRS 125.150. It held that a trial judge may consider evidence that a spouse's income will increase in the future based on past earnings. Lewis v. Lewis, 71 Nev. 301, 303, 289 P.2d 414 (1955). Extending that principle, the court held that in fixing alimony or child support a trial judge should be allowed, but is not required, to consider what a husband or father could in good faith earn if he so desired, consistent with authority elsewhere. See Bratnober v. Bratnober, 309 P.2d 441 (Cal. 1957). The key is good faith: if the payor intentionally holds a job below his reasonable skill level or purposefully earns less than his capabilities permit, the court should consider that; if, through circumstances beyond his control, he cannot in good faith obtain comparable work, the award should reflect his ability to pay. Because the district court refused to consider Georgia's proffered evidence of prior income and earning potential, and might reach a different conclusion upon considering it, the court reversed and remanded for a limited retrial on the amount of alimony and child support only.

In plain language

Georgia and Mansell Rosenbaum were married 24 years and had three children while living in Missouri, where Mansell earned about $19,206 a year as an air traffic controller. A Missouri court denied him a divorce in 1968. In January 1969, Mansell quit his job, moved to Las Vegas, and filed a new divorce action. Georgia contested it and argued that the Missouri decision denying a divorce barred (was 'res judicata' of) the Nevada case. The Nevada judge granted Mansell the divorce and gave Georgia the equity in the Missouri home, half of a savings account, a car, custody of the children, and modest support ($40 per child and $10 per month alimony). During trial, Georgia's lawyer repeatedly tried to show that Mansell had earned much more in his former job and could earn more again, and that his new bank job at $400 a month was far below his capabilities. The judge refused to consider this evidence of Mansell's prior income and earning potential, calling it speculative and irrelevant. Georgia appealed. The Nevada Supreme Court rejected her res judicata defense: proving that defense requires that the same facts and evidence support both cases, and there was nothing in the record showing what the Missouri case was decided on or that the same evidence was involved. But the court agreed the judge made a mistake in refusing to consider Mansell's earning capacity. It held that a trial judge, in setting alimony and child support, is allowed (though not required) to consider what a spouse could in good faith earn if he wanted to. If a person deliberately takes a lower-paying job or earns less than he reasonably could, the court may take that into account; if he genuinely cannot find comparable work despite good-faith effort, the award should reflect his actual ability to pay. Because the judge might reach a different result after considering the evidence, the court reversed and sent the case back for a limited retrial only on the amount of alimony and child support.