SILVERMAN VS. SILVERMAN (DIVORCE)

Key holdings

Practitioner summary

Appeal by the defendant wife from a Second Judicial District Court (Washoe County) decree granting the plaintiff husband a divorce on the ground of constructive desertion, and from the order denying her new trial motion. The husband's Nevada complaint (filed November 29, 1927 after three months' Reno residence) realleged substantially the cruelty charges the Ohio court of common pleas (Cuyahoga County) had rejected on November 5, 1927 when it dismissed his divorce petition, found him guilty of gross neglect of duty on the wife's cross-petition, and awarded her $150 per month for support of herself and their minor son, custody, counsel fees, and a lien on his realty. Held: (1) the Ohio decree was sufficiently pleaded as a defense (Gulling v. Washoe County Bank, 29 Nev. 257); (2) the decree was final notwithstanding the husband's petition in error under Ohio Gen. Code sec. 12259, which is a separate proceeding in error that does not impair the judgment's effect (Levering v. National Bank, 87 Ohio St. 117; Rogers v. Hatch, 8 Nev. 35); (3) the wife did not waive the defense by defending on the merits (Harding v. Harding, 198 U.S. 317; Kelly v. Kelly, 118 Va. 376); (4) the issue of willful desertion in Nevada was identical with the issue of the wife's justified separation determined in the Ohio maintenance litigation - Sweet v. Sweet, 49 Nev. 254, distinguished as involving no foreign decree adjudging the separation lawful; Vickers v. Vickers, 45 Nev. 274, followed. The Ohio decree conclusively established that the wife's separation was lawful and thus could not constitute willful desertion; granting the husband a divorce denied the decree full faith and credit in violation of the federal constitution. Reversed and remanded. Coleman, J. wrote separately, concluding the answer pleaded all elements of res judicata, with a further concurrence in his views.

In plain language

Morris Silverman sued his wife Jennie for divorce in Ohio, claiming extreme cruelty and gross neglect of duty. The Ohio court found against him, dismissed his petition, found him guilty of gross neglect of duty on Jennie's cross-petition, and awarded her alimony of $150 per month plus custody of their younger son. Morris then moved to Reno and, after three months, sued Jennie again - this time claiming her conduct amounted to 'constructive desertion.' The Nevada trial court granted him the divorce, essentially retrying the same story the Ohio court had rejected. Jennie appealed. The Nevada Supreme Court reversed. It rejected each of the husband's arguments: the Ohio decree was adequately pleaded as a defense; it was final even though he had filed a 'petition in error' in Ohio, because under Ohio law that is a separate review proceeding that does not suspend the judgment; and the wife did not waive her reliance on the Ohio decree by also defending on the merits. Most importantly, the issues were identical: the Ohio decree legally established that Jennie's separation from Morris was justified and not her fault, which necessarily meant the same separation could not be a willful desertion of Morris by Jennie. By granting the divorce anyway, the Nevada court failed to give the Ohio judgment the full faith and credit required by the United States Constitution. The judgment was reversed and the case remanded.