Gardner v. Gardner, 79

Decision Date24 January 1978
Docket NumberNo. 79,79
Citation240 S.E.2d 399,294 N.C. 172
CourtNorth Carolina Supreme Court
PartiesJonas Melvin GARDNER v. Rose D. GARDNER.

Freeman & Edwards by George K. Freeman, Jr., and James A. Vinson III, Goldsboro, for defendant-appellant.

Mast, Tew, Nall & Moore, P. A. by George B. Mast and W. Richard Moore, Smithfield, for plaintiff-appellee.

EXUM, Justice.

At the outset we think it important to say that we are not inadvertent to the proposition that the Court of Appeals' denial of defendant's application for a writ of certiorari was a ruling within the discretion of that Court. Normally we would not interfere with the exercise of such discretion. We determined to take this case, however, not because we thought the Court of Appeals by denying defendant's application had abused its discretion, but because we desired to address the important and novel questions relating to the applicability of the compulsory counterclaim provisions of Rule 13 of the Rules of Civil Procedure for the guidance of the bench and bar.

This action was brought by plaintiff husband for absolute divorce on the ground of one year's separation. The controversy presented by defendant wife's petition rests upon the effect of a prior action filed by her in Wayne County seeking initially alimony without divorce but later, by amendment to her complaint made after the filing of this Johnston County action, divorce from bed and board.

The sole issue properly presented for our determination is whether this action should have been dismissed or stayed on the ground that Rule 13(a) of the North Carolina Rules of Civil Procedure requires it to have been filed as a compulsory counterclaim to the wife's Wayne County action. We hold that Rule 13(a) does require dismissal or stay of this action.

These parties were married on 11 August 1957. There are no children. On 28 May 1975 the husband moved out of the marital home in Smithfield, Johnston County. On 10 May 1976 the wife went to Goldsboro, Wayne County, where she signed a lease for an apartment, registered to vote, opened a bank account, acquired a telephone listing, signed a contract for electricity, joined a church, ordered a local newspaper, and told friends of her intent to establish a permanent home in Goldsboro. On 11 May 1976 the wife moved from the marital home to an apartment in Goldsboro. On 12 May 1976 she filed a complaint in the Wayne County District Court in which she prayed for alimony without divorce on the ground, among others, that her husband had abandoned her on 28 May 1975.

At the time this case was argued before us in February, 1977, the wife's Wayne County action had proceeded as follows: On 25 May 1976 the husband moved to remove this action to Johnston County on the ground that neither party was a resident of Wayne County. This motion was denied by the Wayne County District Court, and the husband appealed the ruling to the Court of Appeals. On 16 June 1976 the husband moved to transfer the Wayne County action to Johnston County on forum non conveniens grounds pursuant to General Statute 1-83. 1 Also on 16 June 1976 the husband moved for an extension of time to answer. On 26 June 1976 the wife filed an amendment to her complaint by which she struck out her prayer for relief asking for alimony without divorce and substituted in lieu thereof a prayer that she be granted alimony and a divorce from bed and board. The husband had not answered the complaint. 2

Meanwhile in Johnston County, the husband on 1 June 1976 filed an action for absolute divorce on the ground of one year's separation beginning 28 May 1975. On 29 June 1976 the wife moved in this action that it be dismissed on the ground of a prior action pending in Wayne County or, in the alternative, that it be stayed until the Wayne County action could be determined. This motion was denied. The correctness of this denial is, essentially, the question for review. On 27 August 1976 the wife filed an answer to her husband's action in which she denied the separation and characterized the husband's action on 28 May 1975 as an abandonment. She further filed a counterclaim against the husband seeking alimony without divorce on the same grounds which she had earlier asserted in her Wayne County action.

The wife's sole contention is that the husband's action for absolute divorce is a compulsory counterclaim within the meaning of Rule 13(a). 3 As such, she says, it must be filed if at all as a counterclaim in her Wayne County action. The husband, on the other hand, relying on the legislative and judicial history of our divorce laws, features which distinguish matrimonial disputes from other kinds of civil actions, and a policy which favors maintaining within reason the marital relationship, contends that Rule 13(a) should have no application to his action for absolute divorce.

Similar factual circumstances in matrimonial disputes have been the subject of appellate decision in North Carolina, but the doctrine of abatement rather than the compulsory counterclaim rule was the basis for decision in these cases. Fullwood v. Fullwood, 270 N.C. 421, 154 S.E.2d 473 (1967); Beeson v. Beeson, 246 N.C. 330, 98 S.E.2d 17 (1957); Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796 (1952); Cook v. Cook, 159 N.C. 46, 74 S.E. 639 (1912); McLeod v. McLeod, 1 N.C.App. 396, 161 S.E.2d 635 (1968). 4

The wife here, though, taking the position that Rule 7(c) has abolished pleas in abatement and that the substantive law of abatement is thereby rendered useless, 5 has abandoned in her brief all reliance on abatement and rests her argument entirely on Rule 13(a).

The question, then, for decision is whether the compulsory counterclaim provisions of Rule 13(a) require a dismissal or stay of the husband's action. The answer depends on the answers we give to several other questions. First, may the husband's action be denominated a compulsory counterclaim, that is, did it arise "out of the transaction or occurrence that is the subject matter of the opposing party's claim" and had it accrued at the time the answer was served? 6 Second, if it may be so denominated does Rule 13(a) require dismissal or stay? Third, does Rule 13(a) so contravene other statutes or public policy that it should be held inapplicable to divorce actions?

We are satisfied the husband's claim for divorce may be denominated a compulsory counterclaim. It arises out of the same transaction or occurrence that forms the basis for the wife's abandonment claim. The wife contends the husband abandoned her 28 May 1975. The husband contends his leaving was a separation entitling him to a divorce. Although when this case was argued the husband had not filed an answer, his claim had accrued in time for him to have filed it with his answer when the answer became due.

Once a claim has been denominated a compulsory counterclaim under Rule 13(a), the question what must be done with it if it is filed as a subsequent, independent claim is not answered by the rule itself. Our old counterclaim cases prior to the adoption of Rule 13(a) are of no help. Before the adoption of Rule 13(a) and leaving aside res judicata considerations, the concept of a compulsory counterclaim was unknown to our civil practice. The questions under the old counterclaim provisions centered around whether the counterclaim was permitted rather than compulsory. See G.S. 1-137 and annots. thereunder (1A General Statutes, Recompiled 1953). If the counterclaim was permitted, the defendant could elect whether to plead it as such or bring an independent action. 1 McIntosh, N.C. Practice & Procedure, § 1243, p. 694 (2d Ed. 1956). The purpose of Rule 13(a), making certain counterclaims compulsory, is to enable one court to resolve "all related claims in one action, thereby avoiding a wasteful multiplicity of litigation . . .." Wright and Miller, Federal Practice and Procedure § 1409, p. 37 (1971). See also id., § 1418, p. 103. Federal courts have sometimes dismissed the second claim, U. S. v. Eastport S. S. Corp., 255 F.2d 795 (2d Cir. 1958); Jepco Corp. v. Greene, 171 F.Supp. 66 (D.C.N.Y.1959); E. J. Korvette Co. v. Parker Pen Co., 17 F.R.D. 267 (D.C.N.Y.1955); and, in other cases, simply stayed it, Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir. 1970); Leonard F. Fellman Co. v. Smith-Corona Marchant Inc., 27 F.R.D. 263 (D.C.Pa.1961).

We hold, therefore, that in order to give effect to the purpose of Rule 13(a) once its applicability to a second independent action has been determined, this second action must on motion be either (1) dismissed with leave to file it in the former case or (2) stayed until the former case has been finally determined.

Having then determined that the husband's claim for divorce may be denominated a compulsory counterclaim and that if Rule 13(a) is applicable it must be either dismissed or stayed, we turn to whether we should decline to apply Rule 13(a) to an action for divorce because of provisions in other statutes governing these disputes.

Rule 1 of the Rules of Civil Procedure provides: "These rules shall govern the procedure in the superior and district courts of the State of North Carolina in all actions and proceedings of a civil nature except where a differing procedure is prescribed by statute." (Emphasis supplied.) Certainly divorce actions are "of a civil nature." The question is whether our statutes dealing specifically with divorce actions prescribe a procedure for counterclaims different from that prescribed in Rule 13(a). We conclude they do not.

Our statutes dealing with marital disputes seem to indicate a legislative desire that proceedings in matrimonial disputes shall be conducted as in other civil actions unless there is some express statutory provision otherwise. General Statute 50-8 provides: "In all actions for divorce the complaint shall be verified in accordance with the provisions of Rule 11 of the Rules of Civil Procedure and G.S. 1-148." General...

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  • Bockweg v. Anderson
    • United States
    • North Carolina Supreme Court
    • April 8, 1993
    ...could have moved to dismiss on the grounds of a prior action pending involving the same claim. See Gardner v. Gardner, 294 N.C. 172, 175 n. 5, 240 S.E.2d 399, 402 n. 5 (1978) (defendant may raise "a defense in the nature of the old plea in abatement" under Rule 12(b)) (quoting Lehrer v. Man......
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    • North Carolina Court of Appeals
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    ...to resolve ‘all related claims in one action, thereby avoiding a wasteful multiplicity of litigation....’ ” Gardner v. Gardner, 294 N.C. 172, 176–177, 240 S.E.2d 399, 403 (1978) (citations omitted). Thus, “Rule 13(a) is a tool designed to further judicial economy. The tool should not be use......
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    • North Carolina Supreme Court
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    ...of a civil nature, and there is no "differing procedure" prescribed by statute which governs the action. 1 Gardner v. Gardner, 294 N.C. 172, 240 S.E.2d 399 (1978). Under Rule 52(a), three separate and distinct acts are required of the trial court. It must (1) find the facts specially, (2) s......
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    ...enable one court to resolve all related claims in one action, thereby avoiding a wasteful multiplicity of litigation." Gardner v. Gardner, 294 N.C. 172, 176–77, 240 S.E.2d 399, 403 (1978) (quotation and citation omitted). While the effect of failing to assert a compulsory counterclaim is no......
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