SMITH VS. SMITH (DIVORCE)

Key holdings

Practitioner summary

Suit for divorce on the ground of nonsupport; the wife prevailed below and the Supreme Court reversed outright. Sanders, J., held that the plaintiff could not predicate a nonsupport cause of action on the defendant's failure to support her after she had notified him to go and that they could not live together longer, invoking the settled rule that a party cannot obtain a divorce on grounds occasioned by the party's own misconduct (Reed v. Reed, 4 Nev. 395). The opinion recites the parties' 1898 Indiana marriage, the wife's separate estate (a $14,900 farm and a Brookeville, Ind. home worth $8,000 unfurnished) and the husband's employment history and blameless character, and notes without deciding a pleaded affirmative defense of a prior Indiana judgment in the husband's favor on the same nonsupport ground (admitted in the reply but not urged below). The Nevada suit was instituted September 16, 1927, after the Indiana litigation and months after the wife told the husband to leave. Rather than remanding for retrial, the court reversed with directions to enter judgment and decree for the defendant at plaintiff's costs.

In plain language

A wife sued her husband for divorce in Nevada on the ground of nonsupport. The couple had married in Indiana in 1898 and lived together until March 1926. The wife had inherited money in 1911 and owned a farm she bought for $14,900 plus a furnished home in Brookeville, Indiana, worth $8,000 unfurnished; the husband was a cigar maker whose trade collapsed when the local cigar business declined, and after an illness in late 1923 he could not find steady work despite real effort. In early March 1926 the wife told him they could not live together any longer and that he must go. She then sued him for divorce in Indiana (where judgment went in his favor) and later filed this Nevada suit in September 1927, claiming he had failed to support her after she sent him away. The Nevada Supreme Court held she could not win. A spouse cannot complain of nonsupport after ordering the other spouse to leave - the husband had no choice in the matter - and it is well settled that a person cannot obtain a divorce on grounds occasioned by his or her own misconduct. The court also noted that neighbors uniformly spoke highly of the husband's character and that his 15-year-old daughter testified he was good to her. The judgment for the wife was reversed, and the trial court was ordered to enter judgment for the husband, with costs against the wife.