Johnson v. Johnson

183 S.E.2d 805 (1971) 12 N.C. App. 505

David A. JOHNSON
v.
Janine M. JOHNSON.

No. 7110DC570.

Court of Appeals of North Carolina.

October 20, 1971. Certiorari Denied December 7, 1971.

Boyce, Mitchell, Burns & Smith, by Ben F. Clifton, Jr., Raleigh, for plaintiff appellee.

William T. McCuiston, Raleigh, for defendant appellant.

Certiorari Denied by Supreme Court December 7, 1971.

PARKER, Judge.

Plaintiff alleged, and in her pleadings defendant admitted and on this appeal her counsel has stipulated, that plaintiff and defendant were separated on 27 March 1964 "pursuant to judicial decree entered at the request and motion of defendant for separate maintenance and application for divorce from bed and board or judicial separation" and that "since the time of said order of judicial separation" the parties have lived continuously separate and apart from each other. The trial court, as trier of the facts, has answered an issue finding this to be true. Defendant appellant's sole assignment of error is that the trial court erred in overruling her plea in bar of res judicata. We find no merit in this contention and appellant's assignment of error is overruled.

"In determining whether two actions are on the same cause of action, for the purpose of applying the doctrine of res judicata, a comparison of the relief sought in each action is not necessarily a proper test. It is clear that the mere fact that the same relief is sought in two actions does not make the causes of action identical within the meaning of the doctrine of res judicata." 46 Am.Jur.2d, Judgments, § 412, p. 579. In the husband's prior action for absolute divorce, filed on 5 January 1970, he alleged that his wife had separated herself from him on 13 March 1964 and he sought a divorce on the grounds that such separation, wrongfully initiated by her, had continued thereafter for the required statutory period prior to the institution of his action. This his wife denied, alleging on the contrary that on 13 March 1964 her husband had abandoned her without just cause or excuse. Upon trial of the prior action, the jury answered the issue of abandonment in favor of the wife. In the present action, instituted on 4 January 1971, the husband alleged, and the wife in her answer admitted, that the parties were separated on 27 March 1964 pursuant to judicial decree entered at the request and motion of the wife and that since the time of said order of judicial separation the parties have lived continuously separate and apart. Thus, the basis of the present action is entirely different from that which the husband sought, unsuccessfully, to establish in his prior action.

According to decisions of our Supreme Court, "the effect of a divorce a mensa et thoro, obtained by the wife on the ground her husband abandoned her, is to legalize their separation from the date of such judgment; and in such case the husband, after two years (now one year) from the date of such judgment, may proceed to an absolute divorce." Richardson v. Richardson, 257 N.C. 705, 711, 127 S.E.2d 525, 530. A decree awarding a wife alimony without divorce in an action under former G.S. § 50-16 has also been held to legalize the separation, even though the decree be based on the wrongful act of the husband in abandoning the wife, so that if such separation continues for the required statutory period thereafter, the husband will become entitled to a divorce. Rouse v. Rouse, 258 N.C. 520, 128 S.E.2d 865.

When the order dated 27 March 1964 was entered on motion of the wife in her action for alimony without divorce, the court not only awarded her alimony pendente lite, but went further and awarded her "sole and exclusive possession, for herself and the infant child," of the residence of the parties. This had the effect of legalizing the separation of the parties from the date of the order, and such separation having continued for the requisite statutory period thereafter, the husband became entitled to a divorce. In the husband's prior action for divorce, the jury determined that the separation on which that action was based was the result of the husband's wrongful abandonment of his wife. That verdict, however, was not determinative of any issue presented in the present action, in which the period of separation alleged commenced only when the separation became legalized by judicial decree. The two actions being based on different grounds, the doctrine of res judicata does not apply and the court committed no error in overruling defendant's plea in bar. The judgment appealed from is

Affirmed.

BRITT and MORRIS, JJ., concur.