SWEET VS. SWEET (DIVORCE)

Key holdings

Practitioner summary

Husband's action for divorce on the ground of willful desertion, on a constructive-desertion theory (the defendant's acts and conduct justified plaintiff in leaving, chargeable to the offending spouse as desertion, 9 R.C.L. sec. 149). Judgment for plaintiff; defendant's new-trial motion was overruled and her appeal from that order was noticed but never perfected, leaving only the appeal from the judgment. Sanders, J., held: (1) on an appeal from the judgment alone the court cannot pass on the sufficiency of the evidence, but under section 386 of the practice act (Rev. Laws 5328) it may examine the evidence to determine the legal question whether there is any evidence to support the judgment; (2) the defendant's res judicata plea, resting on the dismissal of plaintiff's prior Connecticut suit for intolerable cruelty (Sweet v. Sweet, 97 Conn. 693, 118 A. 36), failed for want of identity of causes of action - cruelty and desertion are separate and distinct statutory grounds under the laws of both states; and (3) the rule barring successive petitions on grounds known when the first suit was brought did not apply because, per the findings, the desertion cause had not ripened when the Connecticut action was commenced. Finding legal evidence to support the judgment, the court affirmed.

In plain language

A husband whose marriage was based in Connecticut first sued his wife there for divorce on the ground of 'intolerable cruelty' and lost - the Connecticut Supreme Court decided against him and the suit was dismissed. He then moved to Reno, lived there the statutory six months, and sued for divorce in Nevada on a different ground: willful desertion, based on the theory that his wife's conduct had forced him to leave (called 'constructive desertion'). The Nevada trial court granted him the divorce, and the wife appealed from the judgment, arguing among other things that the Connecticut case barred the new suit. The Nevada Supreme Court affirmed. Because the wife appealed only from the judgment (her separate appeal from the denial of her new-trial motion was never perfected), the court could not weigh the sufficiency of the evidence; it could only ask whether there was any evidence supporting the judgment, and there was. On the former-judgment defense, the court explained that cruelty and desertion are separate and distinct grounds for divorce, so losing a cruelty case does not bar a later desertion case. And although a party who knows of several existing grounds must ordinarily assert them together, the husband's desertion claim had not yet ripened when the Connecticut suit was begun, so the earlier judgment was no bar.