Sears v. Sears , 253 N.C. 415 ( 1960 )

117 S.E.2d 7 (1960) 253 N.C. 415

Clair G. SEARS
v.
Marie SEARS.

No. 238.

Supreme Court of North Carolina.

November 23, 1960.

Clayton & London, Charlotte, for defendant-appellant.

Charles T. Myers, Charlotte, for plaintiff-appellee.

WINBORNE, Chief Justice.

The questions presented on appeal are whether or not the lower court erred in sustaining the plaintiff-husband's demurrer ore tenus to the defendant-wife's First and Third Further Answers and Defenses.

As is shown above, the defendant-wife stated in her answer that she had obtained a judgment of divorce from bed and board from the plaintiff-husband in the courts of New York State on the grounds of cruel and inhuman treatment, and that the New York decree ordered the husband, plaintiff here, to pay to the wife, defendant here, permanent support. Therefore, the first question for decision is this: In an action for absolute divorce in North Carolina, is a counterclaim by the defendant-wife for alimony without divorce barred when the counterclaim shows upon its face that the wife has secured a prior New York judgment for divorce a mensa et thoro, and an award of permanent support and maintenance?

The rule in North Carolina is that a divorce decree rendered in a sister state which is valid and entitled to recognition under the Full Faith and Credit Clause of the United States Constitution, Art. IV, Sec. 1, is res judicata as to all matters in issue and determined, and a bar to a subsequent suit for the same relief. Arrington v. Arrington, 127 N.C. 190, 37 S.E. 212, 52 L.R.A. 201; Jenkins v. Jenkins, 225 N.C. 681, 36 S.E.2d 233; Howland v. Stitzer, 231 N.C. 528, 58 S.E.2d 104; Barber v. Barber, 217 N.C. 422, 8 S.E.2d 204; Kinross-Wright v. Kinross-Wright, 248 N.C. 1, 102 S.E.2d 469.

In the Howland v. Stitzer case, supra, Denny, J., writing for the Court, said [231 N.C. 528, 58 S.E.2d 106]: "``Under the full faith and credit clause of the Constitution of the United States, a judgment rendered by a court of one State is, in the courts of another state of the Union, binding and conclusive as to the merits adjudicated. It is improper to permit an alteration or re-examination of the judgment, or of the grounds on which it is based * * *.'"

Thus it appears that there is nothing in this case to indicate that the New York judgment is not valid. Indeed, the defendant-wife who procured that judgment pleads it as a valid decree. The doctrine of res judicata is clearly applicable to the situation presented by the pleadings herein. The parties here are the identical litigants who were before the New York court in 1952 when the judgment was entered granting defendant-wife a divorce a mensa et thoro and support and maintenance. Indeed, as is stated in Bates v. Bodie, 245 U.S. 520, 38 S. Ct. 182, 184, 62 L. Ed. 444, "* * * If a second action is upon the same claim or demand as that on which the judgment pleaded was rendered, the judgment is an absolute bar * * *."

In Barber v. Barber, supra, and Kinross-Wright v. Kinross-Wright, supra, it is said that an order for the payment of alimony is res judicata between the parties, but is not a final judgment, since the court has power to modify the orders for changed conditions of the parties.

And in Fischli v. Fischli, 1 Blackf. 360, 12 Am.Dec. 251, the Indiana Court held that: "* * * a judgment or decree obtained in another State is conclusive here as to all matters which were or might have been then adjudicated. Hence a decree of divorce in Kentucky, in which alimony was allowed, concludes the wife from applying in this State for a further provision although such original allowance was insufficient * * * Divorces a mensa et thoro, in England, and statutory divorces here, and the consequent allowance of alimony, are predicated on the relationship of husband and wife, and the obligation of the husband to provide for the suitable maintenance of the wife. Taking the matter then as it stood in England, we find no precedent, except in a few extreme cases, where any court has interfered in granting a maintenance to the wife, other than the court that granted the divorce * * *."

And Maclay v. Maclay, 147 Fla. 77, 2 So. 2d 361, is a case in which it was held that a New York decree of divorce a mensa et thoro which adjudicated that the husband was guilty of wrongdoing, and was granted because of the husband's cruel and inhuman treatment toward his wife was res judicata as to issues there determined, in husband's Florida suit for divorce.

Moreover, in Nelson On Divorce, 2nd Ed. p. 522, it is said: "* * * An alimony or support decree rendered in one State, or a provision for alimony or support, being such as to be accorded recognition in another State under the Full Faith and Credit Clause * * * may operate in the latter State as a bar to another action for alimony, or as an adjudication of matters determined or involved in its rendition * * *."

Furthermore, in Howland v. Stitzer, supra, Justice Denny, quoting from Paulin v. Paulin, 195 Ill.App. 350, 352, said: "``True it is that every decree for alimony is subject to be varied at a subsequent time by the court entering the decree, yet no other court can disturb it, and until such court does so, it remains fast, firm, and final.'"

The next question is whether or not the defendant-wife's plea of recrimination is a bar to the right of the husband to get an absolute divorce in this action. The plaintiff-husband contends that since a final judgment of divorce from bed and board, a mensa et thoro, had been obtained more than two years from the time he instituted this suit for divorce a vinculo matrimonii, the defendant-wife cannot now set up the defense of recrimination even though it has been judicially determined that he, plaintiff-husband, was at fault.

The doctrine of recrimination is recognized in North Carolina. It is well settled that the defendant to an action for divorce may set up as a defense in bar that the plaintiff was guilty of misconduct which in itself is a ground for divorce. Also our divorce statutes do not authorize the granting of a divorce to one spouse where the other pleads and establishes recrimination.

In Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466, 470, Stacy, C. J. writing for the Court, declared: "* * * It is true, the statute under review provides that either party may sue for a divorce or for a dissolution of the bonds of matrimony, ``if and when the husband and wife have lived separate and apart for two years', etc. However, it is not to be supposed the General Assembly intended to authorize one spouse wilfully and wrongfully to abandon the other for a period of two years, and then reward the faithless spouse a divorce for the wrong committed, in the face of a plea in bar based on such wrong * * *." See also Pharr v. Pharr, 223 N.C. 115, 25 S.E.2d 471.

However, in Lockhart v. Lockhart, 223 N.C. 559, 27 S.E.2d 444, this Court held that the effect of a judgment granting a divorce a mensa et thoro was to legalize the separation of the parties which theretofore had been caused by the husband's actions, and that after two years from the date of such judgment, the husband could proceed to an absolute divorce. See also Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296.

In fine, the effect of the judgment in Lockhart v. Lockhart, supra, was to legalize the separation of the parties which theretofore had been an abandonment on the part of the plaintiff. He could not thereafter be charged with desertion.

Therefore, the husband is entitled to bring his action for an absolute divorce regardless of fault since the New York judgment in 1952 had the effect of legalizing the separation date, and the wife cannot defend on the ground of recrimination.

Nothing in this decision or in any decree of divorce granted in this action shall have the effect of impairing or destroying any right of the defendant-wife to receive alimony or other rights provided for her under any judgment or decree of a court of competent jurisdiction rendered before the rendering of a judgment of absolute divorce herein. G.S. § 50-11.

For reason stated, the judgment below is

Affirmed.