Silverman v. Silverman

• Decision Date: 04 January 1930
• Docket Number: 2846.
• Citation: 283 P. 593,52 Nev. 152
• Parties: SILVERMAN v. SILVERMAN.
• Court: Nevada Supreme Court

283 P. 593

52 Nev. 152

SILVERMAN v. SILVERMAN.

No. 2846.

Supreme Court of Nevada

January 4, 1930

Appeal from District Court, Washoe County; George A. Bartlett Judge.

Action for divorce by Morris Silverman against Jennie Silverman, in which the defendant filed a cross-complaint. Decree adverse to defendant, and her motion for a new trial was denied, and she appeals. Reversed.

Ayres & Gardiner, of Reno, for appellant.

Platt & Sanford, of Carson City, for respondent.

SANDERS J.

In the year 1909, Morris Silverman and Jennie Silverman intermarried in the city of Cleveland, Cuyahoga county, state of Ohio which city was the marital domicile of the parties during all the time they lived together as man and wife. In the year 1926, Morris Silverman filed in the court of common pleas within and for Cuyahoga county, in said state, his petition for divorce from his wife, Jennie Silverman, upon the ground of "extreme cruelty" and upon the further ground of "gross neglect of duty." In substance, his petition charged as a first cause of action that the defendant was guilty of extreme cruelty, in that, to wit, ever since their marriage the defendant exhibited an uncontrollable temper would go into a rage, slap and otherwise assault plaintiff, would call plaintiff vile and indecent names, and more particularly, in July, 1925, the defendant flew into a rage and dragged plaintiff bodily out of his store, called him vile and obscene names in the presence of their children and other divers persons; that in February, 1925, the defendant drew a revolver and threatened to shoot plaintiff; threatened to obtain acid and blind the plaintiff; that ever since their marriage plaintiff had been in constant fear of his life and bodily harm and that he was obliged to lock his bedroom at night for fear that the defendant would carry out her threats to kill or injure him; that the defendant constantly demanded that plaintiff leave their home under threat to kill or do him bodily harm; that on the 5th day of June, 1926, after the defendant had returned from another city and found plaintiff at their home, she threatened to kill him unless he left the home immediately, and that pursuant to said threats the plaintiff was obliged to leave; that while their children were of tender age the defendant would curse and swear at plaintiff, in their home, and in the presence of said children call plaintiff vile and obscene names.

For a second cause of action, it was alleged that the defendant was guilty of "gross neglect of duty," in that on occasions when the plaintiff would come home late for his dinner, the defendant would refuse to serve plaintiff, and when plaintiff remonstrated with her for her neglect, the defendant would throw dishes and other utensils at him, and plaintiff was forced to cook his own dinner and wash the dishes so used; that ever since their marriage the defendant refused to make the bed of plaintiff and would refuse to do any household duties for plaintiff whatsoever.

The petition alleged that plaintiff was the owner of an undivided interest in certain real estate situate in the city of Cleveland, described in the petition; that the defendant had a dower interest therein. Wherefore, plaintiff prayed that he be divorced from the defendant; that the marriage contract existing between the parties be declared null and void and both parties relieved therefrom; that he be awarded the described real estate, free and clear from any and all claims of the defendant, dower and otherwise, and for such other and further relief as may be deemed just and equitable.

In response to summons, the defendant answered the petition. She admitted the residence of plaintiff in the city of Cleveland, state of Ohio, for more than one year preceding the filing of his petition; that plaintiff and defendant were married at the time alleged in the petition; that two children were born of said marriage whose names and ages were correctly stated in the petition. She admitted that plaintiff was the owner of the premises described in the petition, but admitted no further. She denied each and every and all and singular the allegations and averments contained in plaintiff's petition except such as were specifically admitted to be true. By way of cross-petition and for cause of action against the plaintiff, the defendant set up her residence; the marriage of the parties; that two children were born to them as the issue of their marriage, namely, Saul, then 17 years of age, and Ralph, then 7 years of age. She alleged that she had at all times conducted herself towards the plaintiff as a good and faithful wife, but that the plaintiff had been guilty of gross neglect of duty towards her, in this, to wit: That for more than three years preceding the filing of his petition for divorce he had absented himself from home almost every evening until the early hours of the following morning; that he had refused and neglected the companionship of the defendant; that he had refused and neglected to come home for meals except on rare occasions; that for about three years he had been infatuated with another woman, whose name she alleged would in due season be disclosed to the court and in whose company he spent more time than in the company of the defendant and their children; that ever since about the 5th day of June, 1926, plaintiff and defendant had been separated by reason of the fact that the defendant demanded of the plaintiff that he give up the woman with whom he had become infatuated or else leave the defendant; and that in response to said demand the plaintiff chose to give up the defendant rather than the other woman. She alleged that plaintiff was the owner of real and personal property of the value of $150,000, and that for about three years last past, and since he had become infatuated with the other woman, as aforesaid, the plaintiff had been disposing of his real estate and property by transferring the same to other persons and by making investments in the names of other persons so as to place same beyond the reach of the defendant and beyond the reach of the court, in the event of filing of a petition by the defendant for alimony against him. Wherefore, it was prayed that plaintiff's petition for divorce be dismissed; that defendant be awarded alimony during the pendency of the case and that on the final hearing thereof, she be awarded permanent alimony for the support of herself and the above-named two children; that she be awarded the custody of said children; that she be awarded reasonable counsel fees to enable her to properly defend the plaintiff's claim and to prosecute her cross-petition; that the plaintiff be required to disclose the extent and value of his property and the names of the persons to whom he had transferred it; and for such other and further relief as in law and equity she may be entitled. The plaintiff in his answer to the defendant's cross-petition denied each and every allegation contained therein, not specifically admitted. He prayed that the defendant's cross-petition be dismissed and for judgment as demanded in his petition.

Subsequently the defendant filed in said court and cause a supplemental cross-petition and, with leave of court, made Lydia Woldman and Albert A. Woldman, husband and wife, and one Rose Borstein, defendants in the action, and for cause of action against them alleged that plaintiff was the owner of certain real estate (described), and for a long time prior to the filing of his action for divorce and during all of said time he had been secreting property, both real and personal, for the purpose of placing the same beyond the reach of the court, well knowing that the defendant would file a cross-petition for alimony, and that in furtherance of said design, plaintiff in the years 1925 and 1926 caused certain real estate to be conveyed to the defendant Lydia Woldman by warranty deed, without consideration; that the plaintiff owned other real estate, but that for the reasons aforesaid he took title thereto in the name of the defendant Rose Borstein, who had no equitable interest in the property and who held the same for the purpose of enabling plaintiff to conceal his ownership thereof and to place such property beyond the reach of the court in the event of judgment for alimony which the court might render in this action. Wherefore, she prayed for injunctive relief against said defendants; that they be ordered to reconvey the premises to the plaintiff and that the same be subjected to any order for alimony that may be made in the action; and for such other relief as in justice and equity the court might deem just and proper. Lydia and Albert A. Woldman filed their joint answer, and Rose Borstein filed her separate answer. Upon issues made, the cause came on to be heard on November 5, 1927, upon the pleadings, the evidence, and the arguments of counsel, and upon consideration thereof said court of common pleas found, among other things, that the defendant, Jennie Silverman, was not guilty of "gross neglect of duty" and "extreme cruelty," as set forth in plaintiff's petition, and that plaintiff was not entitled to a divorce. His prayer for divorce and that the defendant, Jennie Silverman, be barred of her right of dower in plaintiff's property was denied, and plaintiff's petition for divorce was dismissed. It was recited in the decree that: "Coming, now, to consider the cross-petition and the supplemental cross-petition of the defendant, Jennie Silverman, the court finds that the allegations of said cross-petition are true; that the plaintiff has been guilty of "gross neglect of duty" towards the defendant, Jennie Silverman, and that she is entitled to alimony for the support of herself and said minor child, Ralph Silverman." The...