THOMPSON VS. THOMPSON (DIVORCE)

Key holdings

Practitioner summary

Suit for divorce on the ground of desertion, tried to a jury, verdict and decree for the plaintiff husband; the defendant wife appealed from the judgment and the order denying a new trial. The pivotal ruling below excluded evidence of the plaintiff's alleged misconduct predating the parties' November 4, 1920 written settlement of the wife's Washington, D.C. separate-maintenance decree ($65 per month), under which the husband conveyed her a house and the suit was dismissed on conditions. Coleman, C.J., affirmed: (1) the settlement agreement worked a condonation of all prior grievances, and condonation may be express without cohabitation (Beeby v. Beeby, 1 Hagg. Ecc. 789; Blandford v. Blandford, 8 Prob. Div. 19; Bush v. Bush, 135 Ark. 512, 205 S.W. 895, 6 A.L.R. 1153); the condonation restored the parties' marital relationship and no allegation of restored relations was necessary to state the desertion claim, the burden being on the defendant to show repetition of the offenses; (2) fraud in procuring the agreement was unavailable because not specifically pleaded, and no reconveyance was tendered; (3) divorce suits in Nevada, though statutory (Effinger v. Effinger, 48 Nev. 209, 239 P. 801), are equitable rather than quasi-criminal in character, per the constitutional convention debates on art. 6, sec. 6 (rejecting Stafford v. Stafford, 41 Tex. 111); (4) bona fide residence was a jury question supported by substantial evidence, and sustaining an objection to a cross-examination question on the source of plaintiff's income was within discretion where counsel declined to state a theory (distinguishing McLaughlin v. McLaughlin, 48 Nev. 155, 238 P. 402). Affirmed.

In plain language

A husband sued his wife in Nevada for divorce on the ground of desertion, and a jury found in his favor. Years earlier, in Washington, D.C., the wife had won a decree of separate maintenance of $65 per month. The couple later signed a written settlement agreement on November 4, 1920: the husband conveyed her a house free of liens, promised to support her and be a true and loving husband, and she agreed to resume marital relations and dismiss the Washington suit. The husband alleged that he provided a suitable home and invited her back, but she refused to come - and that her refusal was desertion. The wife countered that he had behaved so badly she was justified in staying away, and she tried to introduce evidence of his misconduct from before the Washington settlement. The Nevada Supreme Court affirmed the divorce. The settlement agreement amounted to condonation - a forgiveness of past offenses on condition they not be repeated - and condonation can be express; it does not require the parties to have resumed living together. Once the earlier wrongs were forgiven, evidence of them was properly excluded, and it was the wife's burden to show the condonation had been undone by repeated misconduct. The court also rejected the argument that a divorce suit is a quasi-criminal proceeding importing criminal evidence rules, holding that in Nevada divorce actions are equitable in character - a classification the court traced to Nevada's own constitutional convention debates. The wife's claim of fraud in the settlement failed because fraud was never pleaded, and the jury's finding that the husband was a bona fide Nevada resident was supported by substantial evidence.