Young v. Young , 21 N.C. App. 424 ( 1974 )

204 S.E.2d 711 (1974) 21 N.C. App. 424

Morgan YOUNG
v.
Pauline YOUNG.

No. 7428DC54.

Court of Appeals of North Carolina.

May 1, 1974.

Robert S. Swain and Joel B. Stevenson, Asheville, for plaintiff appellee.

Herbert L. Hyde, Asheville, for defendant appellant.

CAMPBELL, Judge.

The doctrine of res judicata applies to divorce actions as well as other civil actions. Garner v. Garner, 268 N.C. 664, 151 S.E.2d 553 (1966). No appeal having been taken therefrom, the judgment entered by Judge Winner 22 August 1972, became and is a final judgment upon the merits and a determination of the rights of the parties as they existed at the time of the judgment. Bowen v. Murphrey, 256 N.C. 681, 124 S.E.2d 882 (1962). In Bowen v. Murphrey, supra, the court stated:

"A final judgment, which adjudicates upon the merits the issues raised by the pleadings, ``estops the parties and their privies as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence, could and should have brought forward.' Bruton v. Light Co., 217 N.C. 1, 7, 6 S.E.2d 822, 826, and cases cited; King v. Neese, 233 N.C. 132, 136, 63 S.E.2d 123; and cases cited; Hayes v. Ricard, 251 N.C. 485, 494, 112 S.E.2d 123."

In King v. Neese, 233 N.C. 132, 63 S.E.2d 123 (1951), the court stated:

"Where a second action or proceeding is between the same parties as a first action or proceeding, the judgment in the former action or proceeding is conclusive in the latter not only as to all matters actually litigated and determined, but also as to all matters which could properly have been litigated and determined in the former action or proceeding. Distributing Company v. Carraway, 196 N. C. 58, 144 S.E. 535; Moore v. Harkins, 179 N.C. 167, 101 S.E. 564, rehearing denied in 179 N.C. 525, 103 S.E. 12; Clothing Co. v. Hay, 163 N.C. 495, 79 S.E. 955; Tuttle v. Harrill, 85 N.C. 456."

In the case at bar defendant has counterclaimed and pleaded in bar the grounds of adultery. Any instances of adultery by the husband up to the time of trial were relevant to her original action and in the exercise of due diligence could have and should have been brought forward. Thus we hold that, despite the pleading in this action of adultery by the husband after 9 April 1971, a date subsequent to that alleged in her complaint in her original action, this portion of defendant's answer is covered by and bound by the 22 August 1972 judgment of Judge Winner. Garner v. Garner, supra; Bowen v. Murphrey, supra; Hayes v. Ricard, 251 N.C. 485, 112 S.E.2d 123 (1960); King v. Neese, supra.

Defendant is, of course, not barred on the grounds of res judicata from asserting any claims of adultery alleged to have occurred subsequent to 22 August 1972, and it was error for the trial court to strike her defense and counterclaim as it related to events subsequent to 22 August 1972.

Affirmed in part.

Reversed in part.

MORRIS and VAUGHN, JJ., concur.