Behr v. Behr, 7910DC1004

• Decision Date: 20 May 1980
• Docket Number: No. 7910DC1004,7910DC1004
• Citation: 46 N.C.App. 694,266 S.E.2d 393
• Court: North Carolina Court of Appeals
• Parties: Alice S. BEHR v. Byron C. BEHR.

Page 393

266 S.E.2d 393

46 N.C.App. 694

Alice S. BEHR v. Byron C. BEHR.

No. 7910DC1004.

Court of Appeals of North Carolina.

May 20, 1980.

William A. Smith, Jr., Raleigh, for plaintiff-appellee.

Purrington, McNamara & Pipkin, P. A. by Thomas P. McNamara, Raleigh, for defendant-appellant.

WELLS, Judge.

Defendant brings forward four assignments of error. Defendant first contends that the trial court erred by refusing to join Lisa Kathryn as a necessary party to this action. A necessary party is one whose presence is required for complete determination of the claim. G.S. 1A-1, Rule 19; MacPherson v. City of Asheville, 283 N.C. 299, 196 S.E.2d 200 (1973). We hold that joinder of Lisa Kathryn was not required, whether or not she reached the age of majority or became emancipated, because the separation agreement provided that all support payments were to be made to plaintiff, as Lisa Kathryn's mother.

Defendant argues that there was an issue of fact before the court relating to rescission of the separation agreement, and that summary judgment was therefore not properly entered. The validity and construction of a separation agreement entered into in another state are governed by the laws of that state. Medders v. Medders, 40 N.C.App. 681, 254 S.E.2d 44 (1979). In the present case, the separation agreement was executed by the parties in New York and the agreement specifically provides that it should be interpreted under the laws of that State. The parties' choice of law is generally binding on the interpreting court as long as they had a reasonable basis for their choice and the law of the chosen State does not violate a fundamental policy of the state of otherwise applicable law. Restatement (Second) of Conflict of Laws § 187 (1971).

Defendant asserts in his verified answer and affidavit that the separation agreement was rescinded by the parties after it was executed, because the parties continued to live together as husband and wife for a period of time prior to their divorce. Under New York law, mere cohabitation does not invalidate a separation agreement the parties must intend a reconciliation. Markowitz v. Markowitz, 52 A.D.2d 521, 381 N.Y.S.2d 678 (1st Dep't 1976). The defendant's affidavit, alleging mere cohabitation between husband and wife, and showing the parties' intention at that time to obtain a divorce, considered in light of their subsequent divorce, shows that the parties did not intend a reconciliation. Accordingly, the defendant has not shown a forecast of evidence which would be available to him at trial to show that a genuine issue of material fact exists on the subject of reconciliation.

Defendant argues that his support payments under the separation agreement must be decreased because the agreement provided for such a reduction when his daughter, Lisa Kathryn, became emancipated, and that Lisa Kathryn became emancipated on 18 May 1978 when she reached the age of eighteen. While we agree that the separation agreement contemplated that Lisa Kathryn's emancipation could occur prior to the age of twenty-one, under New York law the fact that a child has reached the age of eighteen is not determinative of the question as to whether emancipation has occurred. Emancipation is concerned with the extinguishment of parental rights and duties as well as the removal of the disabilities of infancy. Wysocki v. Prior, 24 A.D.2d 732, 263 N.Y.S.2d 342 (4th Dep't 1965), leave to appeal denied, 16 N.Y.2d 486, 264 N.Y.S.2d 1029, 212 N.E.2d 446 (1965). In the case at bar, plaintiff's papers demonstrate Lisa Kathryn's continued dependency on her parents, and defendant has failed to come forth with any facts which would tend to establish emancipation. Under these circumstances, defendant has failed to show that a genuine issue of material fact exists on the issue of emancipation.

Defendant additionally argues that a portion of plaintiff's present claim is barred under the doctrine of res judicata because she failed to assert it in a former action based on the same separation agreement. It is undisputed that on 9 October 1978 plaintiff filed an action to recover all arrearage due under the agreement from 1 May 1977 through 1 February 1978, and that plaintiff obtained a judgment in that action for all installments owing during this period. Defendant now argues that plaintiff is estopped to seek recovery of the arrearage which had accumulated between 1 February 1978 and 9 October 1978, which plaintiff could have demanded in the action she commenced on this latter date. Harsh though the application of the rule may be in this case, we are constrained to agree.

The doctrine of merger is a collateral aspect of res judicata which determines the scope of claims precluded from relitigation by an existing judgment. See, Teele v. Kerr, 261 N.C. 148, 134 S.E.2d 126 (1964); Elliott v. Burton, 19 N.C.App. 291, 198 S.E.2d 489 (1973). Under the doctrine of merger, a party suing for the breach of an indivisible contract must sue for all of the benefits which have accrued at the time of suit or be precluded from maintaining a subsequent action for installments omitted. Restatement of Judgments § 62, Comment h (1942); 50 C.J.S. Judgments § 671, p. 117 (1947). An even broader "transactional" approach is proposed in Section 61 of the Restatement (Second) of Judgments (Tent. Draft No. 5, 1978):

§ 61. Dimensions of "Claim" for Purposes of Merger or Bar General Rule Concerning "Splitting"

(1) When a valid and final judgment rendered in an action extinguishes the plaintiff's claim pursuant to the rules of merger or bar (see §§ 47, 48), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.

(2) What factual grouping constitutes a "transaction", and what groupings constitute a "series", are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.

As in the original Restatement, the Tentative Draft of the Second Restatement would bar recovery of unclaimed installments, owing under an indivisible contract, due at the time the prior action was commenced. Id., Comment d. "The reason for the rule lies in the necessity of preventing vexatious and oppressive litigation and implicit in this rule is an assumption that a plaintiff who has split his cause of action has acted inequitably, knowing that he was causing unnecessary vexation to the...