Hurst v. Hurst, 73--195

• Decision Date: 28 January 1974
• Docket Number: No. 73--195,73--195
• Citation: 504 S.W.2d 360,255 Ark. 936
• Parties: Alice Inez HURST, Appellant, v. Rex L. HURST, Appellee.
• Court: Arkansas Supreme Court

Page 360

504 S.W.2d 360

255 Ark. 936

Alice Inez HURST, Appellant, v. Rex L. HURST, Appellee.

No. 73--195.

Supreme Court of Arkansas.

Jan. 28, 1974.

Brown, Compton & Prewett, LTD., Camden, for appellant.

Haskins, Ward & Rhodes, Little Rock, Bruce Bennett, El Dorado, for appellee.

FOGLEMAN, Justice.

Appellant urges two points for reversal of a decree of divorce granted her husband on the ground of desertion. Appellee filed his complaint on the 12th of January, 1973. Appellant filed a motion to dismiss, alleging that the Chancery Court of Union County had, by decree entered after a hearing held December 14, 1972, awarded her separate maintenance on her petition filed August 6, 1971, to which appellee had responded by answer and later by an amended answer and cross-complaint in which he alleged that he was entitled to an absolute divorce from appellant on the ground of personal indignities. It was also alleged in the motion that appellee's cross-complaint for divorce in that suit was dismissed, that no appeal was taken from the decree and that the complaint in the present action should be dismissed because the issues were res judicata. The motion was denied and, after trial, the decree which is the subject of this appeal was entered.

Appellant asserts two points for reversal, i.e., error in denial of her motion to dismiss and error in finding that appellant had deserted appellee and remained away from his home without reasonable cause. We find no reversible error.

At the outset, we should say that res judicata is an affirmative defense, ordinarily to be raised only by answer. Narisi v. Narisi, 233 Ark. 525, 345 S.W.2d 620; Southern Farmers Association v. Wyatt, 234 Ark. 649, 353 S.W.2d 531. It cannot properly be raised by motion to dismiss. Southern Farmers Association v. Wyatt, supra. In any pleading raising the defense the facts upon which the plea is based must be set out. Widmer v. Wood, 243 Ark. 617, 421 S.W.2d 872. The burden of proving this defense was upon appellant. Southern Farmers Association v. Wyatt, supra. Assuming that the defense could have been asserted by motion, it was incumbent upon appellant to produce evidence sustaining the allegations of her motion, in order to prevail on that defense. There is absolutely no evidence abstracted by either party which makes the required showing. The previous action is not mentioned in any way, other than in appellant's motion, even though it is conceded by appellee that they were separated from August to December in 1971, and that there was a divorce suit between the parties, which was heard on December 14, 1971. The chancery court could not take judicial notice of a prior proceeding between the parties, even though it was in the same court. Lewis v. Lewis (1973) 255 Ark. ---, 502 S.W.2d 505. It must appear, either from the record or extrinsic evidence that the particular matter involved was raised and determined. Fisher v. Fisher, 237 Ark. 321, 372 S.W.2d 612. Unless, of course, the matter was necessarily within the issues presented and might have been litigated in the prior action. Arkansas State Highway Commission v. Staples, 239 Ark. 290, 389 S.W.2d 432. Otherwise, the action cannot be dismissed on the ground of res judicata. Southern Farmers Association v. Wyatt, supra. A judgment relied upon as a bar cannot be considered here unless it was introduced in evidence. Denton v. Young, 145 Ark. 147, 223 S.W. 380.

Appellant concedes that res judicata applies in divorce cases only when the second suit is on the same cause of action as the first, but we are unable to say that this is the case or even that the decree in any prior case between these parties was based upon any particular finding on any issue, even the cause of the separation. Consequently, we cannot apply the rationale of the case of McKay v. McKay, 172 Ark. 918, 290 S.W. 951, wherein it was held that a decree denying a wife's prayer for divorce for cruel and inhuman treatment was conclusive, in a later suit by her on the...