Larsen v. Larsen , 392 Pa. 609 ( 1958 )

Opinion by

Mr. Justice Cohen,

Plaintiff, E. Noer Larsen, married the defendant on January 18, 1947. Within nine months the parties separated and thereafter have not lived together.

On April 19, 1948, plaintiff instituted an action for divorce against the defendant on the ground of indignities. In that proceeding the master, who saw the witnesses and heard the testimony, found that the plaintiff failed to establish a course of conduct by his wife amounting to indignities to his person and that he was the innocent and injured spouse. The report of the master was accepted by the trial court and, after a hearing on exceptions thereto, the divorce was refused. No appeal .was taken.

On January 10, 1955, plaintiff instituted a second action for divorce, this time on the ground of desertion. The alleged withdrawal by Mrs. Larsen from the plaintiff’s home occurred prior to the date of the first proceeding. Again, testimony was heard by a master who recommended that a divorce be granted. Defendant filed exceptions which were sustained by the lower court, and the divorce was refused. Plaintiff then took an appeal to the Superior Court which reversed, and remanded the record for the entry of a decree of divorce. See 184 Pa. Superior Ct. 221, 132 A. 2d 883 (1957).

The defendant thereupon petitioned this Court to review the judgment of the Superior Court and we granted allocatur.

On this appeal we limit ourselves to consideration of whether the adjudication of the factual issues involved in the first divorce action in 1947 under the doctrine of collateral estoppel controls the disposition of the present case.¹

When a judgment on the merits is rendered in favor of a defendant, the plaintiff is prevented by the principle of res judicata from subsequently bringing suit on the same cause of action although he presents a ground for the relief asked additional to those stated in the original action. Restatement, Judgments, §63 (1942); Jones v. Costlow, 354 Pa. 245, 252-253, 47 A. 2d 259 (1946). However, this rule does not apply to an action for divorce which is a proceeding in rem to affect a status. “Thus, where the plaintiff is unsuccessful in obtaining a divorce on a specified ground, the jiidgment does not preclude him from maintaining another action for divorce on other grounds, even though, they existed and were known to him prior to the bringing of the first action.²” Restatement, supra §74, comment d at 337; Reiter v. Reiter, 159 Pa. Superior Ct. 344, 352, 48 A. 2d 66 (1946); Commonwealth ex rel. Esenwein v. Esenwein, 153 Pa. Superior Ct. 69, 75-76, 33 A. 2d 675 (1943), aff’d 348 Pa. 455, 35 A. 2d 335 (1944), aff’d 325 U. S. 279 (1945). See Connor v. Connor, 168 Pa. Superior Ct. 339, 346, 77 A. 2d 697 (1951). For this reason plaintiff’s prior action for divorce based upon indignities to the person did not necessarily bar the successful prosecution of Ms second suit brought on the ground of desertion.

However, Mrs. Larsen contends that the judgment rendered against plaintiff in his earlier action for divorce on the ground of indignities creates a collateral estoppel as to the act of desertion now relied upon in the present proceeding. She reasons that since plaintiff testified to the alleged withdrawal in his earlier action for a divorce, the determinations of the court in that proceeding that plaintiff was not the innocent and injured spouse and had not proven indignities, established the fact that she had not wilfully and unjustifiably deserted the plaintiff, and consequently he may not now relitigate the issue.

It is true that if the parties to an action have had an opportunity to appear and be heard in a prior proceeding involving the same subject matter, all issues of fact which were actually adjudicated in the former action and essential to the judgment therein are concluded as between the parties even though the causes of action in the two proceedings are not identical. See Thal v. Krawitz, 365 Pa. 110, 112, 73 A. 2d 376 (1950); Wallace’s Estate, 316 Pa. 148, 153, 174 Atl. 397 (1934); Restatement, supra §68. (Note tbe limitations stated in Restatement, supra §§69, 71, 72). Here, however, this requirement is not satisfied.

Plaintiff’s first action for divorce based upon indignities could only have been sustained by proof of a continuous course of conduct by his wife which made his life burdensome and his condition intolerable. No single indignity standing alone would have been sufficient to have warranted the entry of a decree. The circumstances concerning the alleged desertion were but one link in the necessary chain of proof. The triers of the facts could have believed the plaintiff’s narration of those circumstances and still found that he was not the injured and innocent spouse. Thus, if they did not believe his testimony as to the alleged indignities other than the desertion, or if they believed that such indignities were not sufficient evidence of the required course of conduct, the dismissal of the action would have been proper. See Reiter v. Reiter, 159 Pa. Superior Ct. 344, 350-352, 48 A. 2d 66 (1946). (In prior action for divorce (1) on grounds of indignities to the person and (2) cruel and barbarous treatment, findings that plaintiff was not the injured and innocent spouse and had not proven indignities did not bar his subsequent action for divorce on ground of desertion although facts constituting asserted desertion occurred prior to, and were alleged in, the first proceeding).³

Hence, the issue of desertion was not determined in the first action so as to preclude the plaintiff from litigating the issue in this proceeding.

Finding no error in the dispositon made of this case by the Superior Court its order is affirmed.

Order affirmed.

1 The Superior Court correctly determined the question of whether plaintiff had proven a wilful and malicious desertion by the defendant. When one spouse withdraws from the matrimonial domicile and the resulting separation continuas for the required Statutory period, the burden is upon the absenting spouse to prove consent to the withdrawal. Duncan v. Duncan, 171 Pa. Superior Ct. 69, 73, 90 A. 2d 357 (1952). And, the failure of the deserted spouse either to object to the withdrawal or request the absenting spouse to return does not establish that the withdrawal was consented to. Procopio v. Procopio, 174 Pa. Superior Ct. 157, 160, 100 A. 2d 115 (1953).

2 At the date of the institution of the first action for divorce, two years had not elapsed from the time of Mrs. Larsen’s withdrawal from the plaintiff’s home. Therefore, a divorce on the ground of desertion could not have been décréed iii that proceeding.

3 The opinion in the Reiter ease, written by Justice Arnold while a member of the Superior Court, contains the following pertinent passage: “As to the charge of indignities in the Philadelphia County case [the prior action for divorce] there was no res adjudicata [sic] because that charge could only be sustained by proof of a course of conduct, as to which the events of July 12, 1931, [the alleged desertion] were but a link in the chain, and if the libellant’s narration of those events was believed by the triers of title facts, it still follows that the Philadelphia divorce would have had to be refused if the other links did not withstand the test, of believability.” 159 Pa. Superior Ct. at 351-352.