Vickers v. Vickers

• Decision Date: 01 July 1921
• Docket Number: 2488.
• Citation: 199 P. 76,45 Nev. 274
• Parties: VICKERS v. VICKERS.
• Court: Nevada Supreme Court

199 P. 76

45 Nev. 274

VICKERS v. VICKERS.

No. 2488.

Supreme Court of Nevada

July 1, 1921

Appeal from District Court, Washoe County; Edward F. Lunsford Judge.

Divorce suit by Robert E. Vickers against Victoria T. Vickers. From judgment for defendant, plaintiff appeals. Affirmed.

See also, 199 P. 79.

H. V Morehouse and James Glynn, both of Reno, and Platt & Sanford of Carson City, for appellant.

Cheney, Downer, Price & Hawkins, of Reno, for respondent.

COLEMAN J.

This is an action to obtain an absolute divorce. The complaint charges the defendant with cruelty. The answer denies the acts of cruelty alleged, and sets up in bar a plea of res adjudicata. To this plea plaintiff (Dr. Vickers) filed a reply in which it is admitted that in a suit for separate maintenance brought by this defendant in the circuit court of Cabell county, W. Va., this plaintiff appeared and pleaded, setting up in his answer, among other things, the same facts contained in his complaint in the present action. The reply admits that said separate maintenance suit was heard and determined by the circuit court of Cabell county, W. Va., and that on the 15th day of April, 1920, the said court entered a decree awarding the defendant (Mrs. Vickers) $250 monthly for her support and maintenance. It contains also the following:

"Plaintiff denies that the matters and things, or either, or any, alleged in plaintiff's said petition, or otherwise, or at all, are res adjudicata, for the reason that the same matters and things, or either, or any, have been pleaded by the said plaintiff in the said suit for maintenance brought by this defendant in the circuit court of said Cabell county, which court was a court of competent jurisdiction, having jurisdiction both of the person of the said plaintiff and of the subject-matter and decided before the institution of the plaintiff's said suit in this court, or for any other reason.

Plaintiff denies that said adjudication on the 15th day of April, 1920, or any other adjudication, or judgment, or decision, or opinion, of the said court, or any other court, set out in defendant's answer, or otherwise, is a bar to the suit of the said plaintiff in this court."

Upon the filing of this reply, defendant moved the court to enter a judgment in her favor upon the pleadings, which motion was granted. The appeal herein is from the judgment thus entered.

The matter has been presented on behalf of appellant at great length, several briefs having been filed, aggregating over 60 typewritten pages. We do not deem it necessary or advisable to follow counsel's line of argument in disposing of the case. As we view the record, we are not confronted with any complex problem necessitating protracted discussion. Counsel say that notwithstanding the fact that in the separate maintenance suit brought by Mrs. Vickers in West Virginia, Dr. Vickers pleaded the same matter in his answer as is now pleaded in his complaint in the suit at bar, that the decree in the separate maintenance suit is not a bar to this proceeding, for the reason that it was not necessary for the court to determine in the separate maintenance suit the question of Mrs. Vickers' cruelty, since it was the duty of Dr. Vickers to support his wife, whether or not she was guilty of cruelty. Such is not the law, either in Nevada or West Virginia. Counsel for appellant cite many English authorities, and some American, wherein it is held that it is the duty of the husband to support the wife when he lives separate and apart from her, as Dr. Vickers was at the time the separate maintenance suit was instituted, even though she is at fault.

It is clear that there was a conflict of authority on the question in England, the ecclesiastical courts holding to the rule contended for by appellant, while the equity courts mainly took the contrary view; but in this country the weight of authority and the best-reasoned cases are in line with the rule existing in West Virginia. One of the very earliest cases in this country adopting that rule was Purcell v. Purcell, 4 Hen. & M. (Va.) 507. The authorities sustaining this view are collated in a note to Lang v. Lang, 38 L. R. A. (N. S.) 950. However, we are not driven to the necessity of determining what the rule was in England, or what it should be in this state, in disposing of the question, for we must be controlled either by the law of West Virginia or by the statute of Nevada. In West Virginia the question has been settled by the highest court. It was held in the case of Kittle v. Kittle (W. Va.) 102 S.E. 799, that if the wife were at fault she would not be entitled to separate maintenance. Hence it follows that since the West Virginia court awarded Mrs. Vickers $250 a month as separate maintenance, it must have found that she was not guilty of cruelty. But if we must be controlled by the law of this state, the same result must follow. By statute it is provided:

"When the wife has any cause of action for divorce against her husband, or when she has been deserted by him and such desertion has continued for the space of ninety days, she may, without applying for a divorce, maintain in the district court, an action against her husband for permanent support and maintenance of herself or of herself and of her child or children." Stats. 1913, c. 97, p. 120.

It is clear from our statute that the wife can obtain separate maintenance only in case she is not at fault, for if she were at fault she would have no ground for divorce; neither could she recover on the ground of desertion, if at fault, since desertion consists in the voluntary separation of one spouse from the other without the latter's consent and without justification. 14 Cyc. 611; Luper v. Luper, 61 Or. 418, 96 P. 1101.

Further, it is said that judgment should not have been entered on the pleadings, since a reply was in fact filed. This contention would be sound did the reply deny a material allegation of the answer. Whether or not a so-called reply raises an issue depends entirely upon the substance of the document filed, and not upon its form or designation. The document designated a "reply" in this case is all right in form, but is woefully lacking in substance to present a triable issue of fact. It admits the allegation of the answer as to the matter pleaded in the complaint being res adjudicata; hence there is no issue to try, and nothing left for the court to do but to enter judgment in accordance with the fact pleaded in the answer and admitted in the reply.

It is said, however, in one of the briefs, that to successfully set up the plea of res adjudicata the answer must also allege the purpose for which it is pleaded, as was done in this case--that is, in bar or otherwise, as the case may be--and that a denial that such was the purpose of the party so alleging it raises an issue. Supplementing this contention, it is said:

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