SCHWARTZ VS. SCHWARTZ (SUPPORT ARREARAGES)

Key holdings

Practitioner summary

Per Curiam. Res judicata is an affirmative defense that must be specifically pleaded, NRCP 8(c), and failure to plead it is normally a waiver, Tolotti v. Eikelberger, 90 Nev. 466, 530 P.2d 106 (1974). An unpleaded affirmative defense may nonetheless be considered where issues are tried by express or implied consent, NRCP 15(b), or where the court permits amendment and no prejudice results, NRCP 15; Jakobsen v. Massachusetts Port Authority, 520 F.2d 810 (1st Cir. 1975). Here the respondent never sought amendment, and the record did not show trial by consent: unlike Poe v. La Metropolitana, 76 Nev. 306, 353 P.2d 454 (1960), there was no pre-trial or opening reference to res judicata, the issue arose for the first time during cross-examination, and appellant's counsel was surprised and objected, seeking to reopen. The Court emphasized that parties must be given reasonable advance notice of the major issues and a reasonable opportunity to respond; appellant received neither. The defense was therefore not properly before the trial court, and the dismissal predicated on it could not stand. In a footnote, the Court added that even if the defense had been properly raised, the equivocal and limited testimony did not conclusively establish res judicata, which requires a prior action between the same parties involving the same subject matter with a final judgment on the merits; each element must be affirmatively proved and the burden rests on the defendant.

In plain language

A former wife sued her ex-husband in Nevada to collect unpaid spousal and child support owed under a 1965 California divorce decree and a later 1973 stipulation. The husband's answer denied that anything was owed but raised no formal defenses. At trial, during cross-examination, the wife mentioned that she had obtained 'two judgments' against her husband in California. Seizing on this, the husband moved to dismiss the whole case on the ground of res judicata - the doctrine that a matter already decided cannot be relitigated. The trial court ruled the wife was 'bound by her own testimony' and dismissed her case. The Nevada Supreme Court reversed. Res judicata is an affirmative defense that must be specifically raised in the pleadings; failing to plead it normally waives it. It can sometimes be considered anyway - if both sides effectively try the issue by consent, or if the court allows an amendment where the other side is not prejudiced - but none of that happened here. The husband never asked to amend, never raised the issue before trial, and the wife's lawyer was surprised and objected. Parties are entitled to reasonable notice of the major issues and a fair chance to respond. Because the wife had neither, the defense was not properly before the court. The Court also noted that, even if it had been raised, the wife's vague testimony did not actually prove the defense.