Price v. Price , 1982 N.C. App. LEXIS 2541 ( 1982 )

MARTIN (Robert M.), Judge.

The plaintiff asserts on appeal that the trial court erred in finding that the consent judgment of 9 July 1980 constituted res judicata as to the second claim of the February 1981 action which resulted in summary judgment for the defendant. We agree with plaintiff.

The general rule in North Carolina is that a “judgment on the merits is conclusive not only as to matters actually litigated and determined, but also as to all matters properly within the scope of the pleadings which could and should have been brought forward.” Painter v. Board of Education, 288 N.C. 165, 173, 217 S.E. 2d 650, 655 (1975). The court in Painter, 288 N.C. at 173, 217 S.E. 2d 655 went on to quote from Gibbs v. Higgins, 215 N.C. 201, 204-05, 1 S.E. 2d 554, 557 (1939) saying:

“ ‘. . . The plea of res ajudicata applies, except in special cases, not only to the points upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject in litigation and which the parties exercising reasonable diligence, might have brought forward at the time and determined respecting it.’ [Citations omitted.]”

The consent judgment between plaintiff and defendant related only to alimony, child support and child custody. The subject matter of this action is a business enterprise operated by plaintiff and defendant and plaintiff’s interest therein. We cannot say that plaintiff should have litigated this matter in the previous domestic proceeding. Therefore, the trial court’s entry of summary judgment for defendant was improper.

The order of the trial court is

Reversed.

Judges MARTIN (Harry C.) and WHICHARD concur.