Smith v. Smith

• Decision Date: 10 January 1951
• Docket Number: Nos. 3601,3602,s. 3601
• Citation: 226 P.2d 279,68 Nev. 10
• Parties: SMITH v. SMITH et al. (two cases).
• Court: Nevada Supreme Court

Page 279

226 P.2d 279

68 Nev. 10

SMITH v. SMITH et al. (two cases).

Nos. 3601, 3602.

Supreme Court of Nevada.

Jan. 10, 1951.

Taylor & Gubler, of Las Vegas, for appellant William B. Smith.

Earl & Earl, of Las Vegas, and Griswold, Reinhart & Vargas, of Reno, for appellant Isabella H. Smith.

Lewis, Hawkins & Cannon, of Las Vegas, for respondent Esther Mead Smith.

BADT, Chief Justice.

This action was commenced below by Esther Mead Smith against William B. Smith and Isabella H. Smith. We shall refer to the parties hereafter by their given names. William and Isabella appeared separately through separate counsel, and answered and cross complained. From a judgment in favor of Esther, William appealed separately, naming Esther and Isabella as respondents. Isabella also appealed separately, naming Esther and William as respondents. William's appeal is numbered 3601 and Isabella's appeal is numbered 3602 in the files of this court. A bill of exceptions was filed in each appeal, but the two bills of exceptions are identical. Complete sets of briefs were filed in each case. They are virtually identical as to the issues presented for our consideration. As to one point in which Isabella's position is urged as stronger than that of William's, we shall speak later. The foregoing is to simplify the somewhat confusing titles of the causes in the two separate appeals. To all intends and purposes William and Isabella are the appellants and Esther is the respondent. The appeals were argued together, although each of the three parties was represented by separate counsel.

The two main questions presented for our determination are as follows: (1) May a second wife residing in Florida, upon learning that the man with whom she had been living for a year and a half under the belief that he was her legal husband under a California marriage, had some six months previously, with the consent and stipulation of his first wife, obtained an order from a Nevada court vacating a decree of divorce from his first wife rendered by that court the day preceding the California marriage, sue the said husband and his first wife, both then residing in Massachusetts, in said Nevada court, to set aside such annulling order on the ground that in obtaining same said husband and his first wife fraudulently concealed from the court the fact that the husband after obtaining his divorce decree had remarried? ¹

The learned district judge answered this question in the affirmative (both defendants having appeared generally and prayed for affirmative relief), remarking that he would never have signed the order annulling the divorce decree had he known that in the meantime the husband had remarried.

(2) In the event we likewise answer this question in the affirmative, we are presented with further questions: (a) May the defendant husband and the defendant first wife plead, as a special affirmative defense to such action, that they had been husband and wife for some thirty-four years, that the defendant husband was mentally unsound and incapable of entering into the second marriage, that his reason had been affected by an injury some three years proviously, that the plaintiff had seduced him, had indulged in illicit intercourse with him, had persuaded him to divorce his first wife and to marry plaintiff, and wrongfully obtained from him in excess of $500,000, which was the joint property of the defendants? (b) May the defendant husband and the defendant first wife cross complain for a judgment against plaintiff for such sum and adjudging the second marriage to be void? (c) May such cross complaint be prosecuted in the absence of the conditions required by our statute to exist in order to confer jurisdiction upon the district court in actions for annulment of marriage?

The learned district judge answered the second group of questions in the negative, and sustained a demurrer to such affirmative defenses and cross complaints.

Esther filed her complaint in the court below November 29, 1948 and alleged that William and Isabella had been divorced by that court March 26, 1946 and that William and Esther intermarried at Los Angeles, California, March 27, 1946; that on July 9, 1946 said court, on stipulation of William and Isabella, set aside and declared null and void the divorce decree of March 26, 1946, and that at the time the court made such vacating order, William and Isabella concealed from the court the fact that William and Esther had intermarried in the meantime; that on November 20, 1947 Esther first learned of the vacating order of July 9, 1946; that such last named order vacating the divorce decree constituted a cloud upon the marriage of Esther and William. She prayed that the vacating order of July 9, 1946 be set aside and that the divorce decree of March 26, 1946 be declared in full force and effect.

William and Isabella filed separate answers and cross complaints. William's answers set forth, in addition to his denials, two separate and further defenses. He alleged that in about the year 1943 he had suffered a severe head injury, resulting in a serious nervous condition causing him to suffer instability of personality with which he was thereafter afflicted, which at various times overcame his reason and understanding; that from 1941 to 1946 Esther, with full knowledged of his condition, pursued a course of conduct by which she sought to alienate William from his wife Isabella--Esther being much younger and an extremely attractive person; that she 'bestowed upon the defendant with great and extreme generosity, her sexual and physical attractions,' to such extent as to overcome his reason and understanding and kept him in a state of 'almost constant hypnotism'; that William did not possess the necessary understanding to enter into a marriage with her and was incapable of asseting thereto; that the marriage was not one in fact and that Esther did not regard or intend it as such but that she simply consummated the marriage in order to get money from William.

By way of cross complaint he set up two causes of action. The first alleged that his marriage to Esther was void by reason of his lack of understanding as to the import and effect of such marriage ceremony. The second alleged that through the practice of fraud, immoral inducement and undue influence and without any legal consideration, Esther had received from him in excess of $500,000, of which she had received from him $300,000 within the past four years. William prayed that his purported marriage to Esther be adjudged to be null and void, that he have judgment against her for $300,000 and that an accounting be had to such end.

Isabella's answer contained four additional separate defenses in which she alleged that the decree of divorce dissolving the marriage between herself and William was of no force or effect because her assent to appear in the action was procured by fraud, because William in concert with Esther, who was then present with him in Nevada, represented to Isabella that it was necessary for William to divorce Isabella 'in order to save his life' and that such was the only reason for procuring the divorce. She also attacks his residence in Nevada. She also alleges that he was at the time ill, physically and mentally, 'suffering from an unstable personality and that his judgment was impaired so that he was abnormally subject to influence, all as a result of a serious head injury received in November, 1943,' that Esther exercised undue control over William, induced him to join her in California and go with her to Nevada to obtain a divorce and to obtain Isabella's appearance by false representations; that Esther persistently, frequently and illicitly cohabited with him, and beginning from after November, 1943 'overcame him with her sexual and physical attractions and coerced him with threats to deny him access to them,' so that his reason and judgment were impaired; that she completely overcame his reason and 'bestowed upon [him] her physical and sexual attractions to the point where he was constantly hypnotized and without reason or understanding.' Her cross complaint attacks William's residence and alleges that his divorce from her was consequently void. She repeats William's allegations as to the money obtained from William by Esther and alleges her ownership of a joint interest therein. She too asks that the purported marriage between William and Esther be annulled and that she be awarded judgment against Esther for her share of the money he is alleged to have given Esther.

(1) Appellants first insist that Esther's complaint does not state a cause of action agsinst either of appellants because her only allegation of damage is that the allegedly fraudulent actions of William and Isabella, in obtaining the vacating order annulling their divorce, constituted 'a cloud on Esther's marriage.' Appellants say that there are no cases where such cloud upon a marriage has been recognized as a damage. The phrase used is of course a metaphorical one. The courts have used varied phrases to describe the situation. In Cates v. Cates, 202 Mo.App. 352, 216 S.W. 573, 574, the court referred to the right of the wife to protect her marital status 'from fraudulent disturbance'. It said that such abstract right 'to [her] status or condition of being a married woman instead of a divorcee' was a valuable and important right, though it might not entitle her 'to lay hold of a horse or a farm.' In Bowman v. Bowman, 125 Cal.App. 602, 13 P.2d 1049, 1051, 14 P.2d 558, the allegation of the second wife as to the effect of the setting aside of the divorce decree of the first wife was that it 'defeat[ed] and defraud[ed] her of her marital rights', and the court referred to her as one 'whose rights as a wife have been injuriously affected by the order * * *,' and later as one 'whose rights as a wife were involved and entitled to complain of the fraud practiced upon the court and herself.' In ...