Peardon v. Peardon

• Decision Date: 22 December 1948
• Docket Number: 3522.
• Citation: 201 P.2d 309,65 Nev. 717
• Parties: PEARDON v. PEARDON.
• Court: Nevada Supreme Court

201 P.2d 309

65 Nev. 717

PEARDON v. PEARDON.

No. 3522.

Supreme Court of Nevada

December 22, 1948

Appeal from Second Judicial District Court, Washoe County; Wm McKnight, Judge.

Divorce action by Roswell C. Peardon against Rose M. Peardon, wherein defendant cross-complained. From an order denying defendant's motion for a new trial, defendant appeals.

Order reversed and cause remanded.

See also 201 P.2d 337.

Samuel Platt, of Reno, for appellant.

Brown & Belford, of Reno, for respondent.

HORSEY Justice.

On June 6, 1945, the plaintiff, Roswell C. Peardon, respondent herein, commenced an action for divorce from the defendant appellant herein, Rose M. Peardon, upon the alleged ground of desertion. The complaint contained the allegations that there were no children the issue of the marriage, and that there were no property rights of the parties to be adjudicated in the action.

The parties will be designated hereinafter as plaintiff and defendant, as they were in the lower court.

On August 4, 1945, the plaintiff caused to be filed and served an amended complaint, and in a second alleged cause of action, as an additional ground of divorce, he alleged that the defendant had treated him with extreme cruelty. In the amended complaint it was again alleged that there were no property rights to be adjudicated in the action.

On September 24, 1945, the defendant, by her attorneys, Messrs. Platt & Sinai, filed her answer and cross-complaint, in which she denied, among other allegations, the allegations of paragraph IV of the complaint, alleging that there were no property rights of the parties to be adjudicated in the action. She denied, also, the allegation of desertion in plaintiff's complaint, and in her cross-complaint alleged as a ground for divorce that the plaintiff had treated her with extreme cruelty.

In paragraphs V, VI and VII of her cross-complaint, the defendant wife alleged, fully, facts and circumstances concerning the property rights of the parties, and all material allegations in said paragraphs V, VI and VII are denied in the plaintiff's answer to the cross-complaint, which answer was filed October 18, 1945.

In order to present a clear picture of the transaction between the parties concerning which there is controversy as to matters of fact and law, it seems advisable to incorporate herein said paragraphs V, VI and VII of the cross-complaint, defendant's prayer for relief following such allegations, and the exhibits 'A' and 'B' thereto attached. Said paragraphs, prayer and exhibits are as follows:

'V. That on or about the first day of May, 1941, in the City and State of New York, the said plaintiff, Roswell C. Peardon, transferred, assigned, made over and conveyed to the said defendant and cross-complaint, Rose M. Peardon, all of his right, title and interest in and to certain inventions and improvements in connection with the detection of and protection against submarines and torpedoes, together with his interest in a certain agreement dated April 22, 1940, executed between him, the said plaintiff, Arthur B. Chapman, and Herbert M. Laford, a copy of which said transfer and assignment is attached hereto, made part hereof and marked Exhibit 'A'.

'That at the time of said transfer and assignment, the said plaintiff owned a one-third (1/3) partnership interest in and to said inventions and improvements. That said partnership interest at said time, and ever since, is and has been known under the trade name of 'Navigation Instrument Company'. That one of the moving considerations for said assignment and transfer as stated by plaintiff was that defendant 'had been through hell and that she was a peach'.

'That it was understood and agreed between plaintiff and defendant, that the plaintiff should share to the extent of twenty-five (25%) per cent of the net profits earned and distributed from and out of said one-third (1/3) interest, and that each of the parties should assume and pay all income and other taxes, Federal and State, levied, assessed on due or owing on his and her respective proportionate interests and earnings as aforesaid. That plaintiff has not paid any part of portion of said taxes, nor has he paid or reimbursed defendant for any part or portion thereof.

'That later, on or about the 21st day of September, 1943, by duress, coercion, undue influence, fraud, personal abuse, threats and force inflicted by plaintiff upon defendant and cross-complainant, immediately prior to the signing of the contract hereinafter referred to, and for a long and continuous period of time prior thereto, the parties entered into an agreement whereby the said defendant transferred to plaintiff one-half (1/2) of all profits, bonuses, or other distributions derived 'from the stock of the Navigation Instrument Company registered in her name's, a copy of which said agreement is attached hereto, made a part hereof, and marked 'Exhibit B'. That on the day preceding the signing of the agreement by defendant, and while the parties were in their apartment, the plaintiff demanded of defendant that she return to him her interest in Navigation Instrument Company. The defendant was sitting on a couch and the plaintiff stood over her loudly and harshly repeating his demand, shouting at and abusing her, and when she attempted to get up, pushed her down hard and spit in her face. This course of conduct continued for hours; and defendant, tired, aching, exhaused and fearing for her safety agreed to turn over a half interest and to sign the agreement, which she subsequently did, much against her will, judgment and independent volition. That plaintiff never suggested to defendant that she seek independent professional or other advice as to the form or substance of the agreement, and she had no technical knowledge of its legal force and effect. Plaintiff's conduct, as aforesaid, was a continuation and culmination of similar previous abusive treatment prior thereto, and over a long period of time, which added to her fears for her own personal safety unless she submitted to plaintiff's will and demands, and which said abusive treatment continued subsequent thereto. The following are but a few examples of such conduct and treatment:----

'In June, prior to the execution of the agreement, at Louisville, Kentucky, following a wedding of defendant's niece, and a party at the home of Mr. and Mrs. T. Harmetts, plaintiff, by word and act, became so abusive toward defendant, that her sister was forced to intervene.

'Later, in the same year, plaintiff literally wrecked their New York apartment, and defendant was so fearful of bodily violence that she summoned plaintiff's attorney.

'Upon another occasion, plaintiff yelled and shouted, called defendant's mother 'A God-demned d_____ son-of-a bitch' and violently struck defendant.

'From August 23 to August 28th, plaintiff was constantly drunk, repeatedly called defendant vile and opprobrious names and spat upon her. From September 6th to 11th plaintiff repeatedly called defendant vile names and called her a s_____ b_____ and a thief in public.

'On October 22nd, while the parties were motoring, plaintiff said to defendant, 'This is one night you won't get home alive'.

'During the month of November, plaintiff left a service revolver and a small revolver and ammunition about the apartment, causing defendant much anxiety and fear.

'On November 9th, plaintiff came home awoke defendant in the middle of the night, told her that to show her how much he hated defendant, he was going to urinate on her (which he attempted). While defendant was defending herself, plaintiff punched her arm until it was black and blue.

'VI. That said above agreement of date on or about September 21, 1943, (Exhibit 'B') was so signed and executed by defendant, under and by the duress, coercion, undue influence, fraud, personal abuse, threats and force inflicted by plaintiff upon defendant, while the parties were occupying the fiduciary relation of husband and wife. That said agreement, ever since said date was, ever since has been, and is now, void, and of no legal force and effect.

'VII. That defendant is informed and believes, and upon information and belief states the fact to be, that plaintiff has been paid, and has received and collected the approximate sum and amount of Thirty-six Thousand One Hundred and Seventy-three Dollars and Thirty-three Cents ($36,173.33), based upon the agreement ('Exhibit B') so wrongfully obtained and of no legal force and effect, and has wrongfully deprived defendant and withheld from her the sum of Twenty-six Thousand Seven Hundred Ninety-eight Dollars and Fourteen Cents ($26,798.14) to which she was and is justly entitled under the agreement dated May 1, 1941 ('Exhibit A'), and the private understanding between the parties, as hereinabove alleged.

'Defendant and cross-complainant further alleges that from and out of the first revenues received by her representing her seventy-five (75%) partnership interest with plaintiff, ('Exhibit A' and said agreement), she purchased a farm at Green Lane, Pennsylvania, which she voluntarily placed in the name of both parties hereto, and which now so stands of record. That the approximate market value of said property is more than Six Thousand Three Hundred Dollars ($6,300.00).

'Wherefore, defendant and cross-complainant prays that the plaintiff take nothing by his said action, and that the defendant and cross-complainant be granted a decree of divorce from the plaintiff forever dissolving the bonds of matrimony now and heretofore existing between the above named defendant and plaintiff, and that each be restored to their original status of unmarried persons.

'That the agreement dated on or about September 21, 1943...