In Re Bernardelli , 12 B.R. 123 ( 1981 )

12 B.R. 123 (1981)

In re Robert J. BERNARDELLI, Barbara Bernardelli, Debtors.
Shirley F. WILLIAMS, Plaintiff,
v.
Robert J. BERNARDELLI, Barbara Bernardelli, Defendants.

Bankruptcy No. 80-00933, Adv. No. 81-0082.

United States Bankruptcy Court, D. Nevada.

June 26, 1981.

Fran P. Archuleta, Reno, Nev., for plaintiff.

Lionel, Sawyer & Collins, Reno, Nev., for defendants.

ORDER GRANTING MOTION TO DISMISS COMPLAINT AS TO BARBARA BERNARDELLI

BERT M. GOLDWATER, Bankruptcy Judge.

Plaintiff's adversary complaint seeks to have a state court judgment obtained against Robert J. Bernardelli declared non-dischargeable. Barbara Bernardelli was not a party in the state court action, but is joined in this adversary action in order to make the community property of the debtors liable if the debt is held to be nondischargeable.

An act constituting an intentional tort of the husband does not create a claim or debt against the wife. The mere fact of marriage is not enough. Jewett v. Patt, 591 P.2d 1151, 95 Nev. 246 (1979). The legal issue of whether community property in Nevada is liable for a judgment debt on account of an intentional tort of the husband is discussed in Randono v. Turk, 466 P.2d 218, 86 Nev. 123 (1970). Although that case was decided before the 1977 revision of some of Nevada's community property laws, the Jewett court in holding a wife is not a proper party to an action against the husband for his intentional tort, states:

"Whether community property is subject to a judgment against Seymour (husband), if one is obtained, is another matter." (Jewett, supra, 95 Nev. at 248, 591 P.2d 1151, citing Randono v. Turk, supra.)

The question of whether community property in Nevada is liable for the judgment debt created by the tort of a spouse is one for a Nevada court not this court.

In the event the debt or claim is nondischargeable, the Bankruptcy Code gives the claim the same status as to community property liability as it had prior to the order for relief. 11 U.S.C. § 524(a)(3) and (b). See 3 Collier on Bankruptcy 524-9 (15th ed.).

The motion to dismiss Barbara Bernardelli as a party defendant is granted.