Larsen v. Larsen

• Decision Date: 02 May 1958
• Citation: 392 Pa. 609,141 A.2d 353
• Parties: E. Noer LARSEN v. Mary LARSEN, Appellant.
• Court: Pennsylvania Supreme Court

Page 353

141 A.2d 353

392 Pa. 609

E. Noer LARSEN v. Mary LARSEN, Appellant.

Supreme Court of Pennsylvania.

May 2, 1958.

Rehearing Denied May 27, 1958.

Robert V. Maine, DuBois, C. K. Gundaker, Philadelphia, for appellant.

Carl A. Belin, Clearfield, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, BENJAMIN R. JONES and COHEN, JJ.

COHEN, Justice.

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 1957, 184 Pa.Super. 221, 132 A.2d 883.

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, 1946, 354 Pa. 245, 252-253, 47 A.2d 259. 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 judgment 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, 1946, 159 Pa.Super 344, 352, 48 A.2d 66; Commonwealth ex rel. Esenwein v. Esenwein, 1943, 153 Pa.Super. 69, 75-76, 33 A.2d 675, affirmed 1944, 348 Pa. 455, 35 A.2d 335, affirmed 1945, 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608. See Connor v. Connor, 1951, 168 Pa.Super. 339, 346, 77 A.2d 697. For this reason plaintiff's prior action for divorce based upon indignities to the person did not necessarily bar the successful prosecution of his 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, 1950, 365 Pa. 110, 112, 73 A.2d 376; In re Wallace's Estate, 1934, 316 Pa. 148, 153, 174 A. 397; Restatement, supra § 68. (Note the 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, 1946, 159 Pa.Super. 344, 350-352, 48 A.2d 66. (In prior action for divorce on grounds of (1) 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 disposition made of this case by the Superior Court its judgment is affirmed.

Judgment affirmed.

BELL, Justice (dissenting).

The Superior Court reversed the lower Court and granted a divorce to Dr. Larsen, the plaintiff, on the ground of desertion. The majority opinion, which affirms the Superior Court, is based upon two fundamental fallacies--(a) there is only one question involved in this case, and (b) the refusal of a divorce on one ground is never a bar to a divorce on another ground.

Facts

The parties were married in January, 1947, ¹ it being the first marriage for Dr. Larsen and the second marriage for Mrs. Larsen, a widow. Two children were born to Mrs. Larsen as a result of her first marriage. The parties, almost from the beginning were incompatible. On October 15, 1947,1 Mrs. Larsen, who was pregnant and afraid of a Caesarian operation, separated from Dr. Larsen upon advice of her physician, and the parties have not lived together since that date. Dr. Larsen made no objection to her leaving, and never once in the succeeding seven years asker her to return. Mrs. Larsen November 5, 1947,1 obtained a non-support order against her husband.

In April 1948,1 Dr. Larsen commenced his first action in divorce against Mrs. Larsen on the ground of indignities to the person. Thereafter, Dr. Larsen filed an Amended Bill of Particulars, which, inter alia, alleged desertion by Mrs. Larsen. The Amended Bill of Particulars averred, inter alia; 'On the 15th day of October, 1947, the respondent [Mrs. Larsen] left the domicile of libellant [Dr. Larsen] without justification or excuse other than that she alleged before the Court in a hearing on desertion and non-support that her Doctor advised her to do so for her happiness.' The Master recommended that a divorce be refused, and in his report pertinently found: 'It is the Master's opinion that libellant [Dr. Larsen] has failed to establish not only the indignities on the part of the respondent [Mrs. Larsen], but also that he is the injured and innocent spouse, both of which he must prove ² in order to establish his grounds for divorce * * *. The proof submitted by libellant [Dr. Larsen] was not convincing, nor did it have the strength which could lead one to believe that these parties were guilty of anything more than mere incompatibility.' The lower Court adopted the findings of the Master and dismissed plaintiff's libel. This decree and the Court's findings were unappealed and consequently became final, binding and conclusive.

In January 1955, a second divorce action alleging desertion was commenced by Dr. Larsen. The defendant, Mrs. Larsen, filed an answer denying the allegation, and affirmatively asserted the defense of res judicata. The trial Court overruled the motion to dismiss the petitioner's complaint on the ground of res judicata. Accordingly, a Master in divorce was appointed, and subsequently he filed his report recommending that a divorce be granted on exactly the same evidence which had been held insufficient in the first divorce action seven years previous. The lower Court dismissed the (libel or) complaint on its merits. Assuming, arguendo, that plaintiff is not barred by res judicata or estoppel, plaintiff failed to establish that his wife was guilty of wilful and malicious desertion.

The Act of May 2, 1929 ³, as amended, provides: 'When a marriage has been * * * contracted * * * between two persons, it shall be lawful for the innocent and injured spouse to obtain a divorce from the bond of matrimony, whenever it shall be judged * * * that the other spouse: (d) Shall have committed wilful and malicious desertion, and absence from the habitation of the injuried and innocent spouse, without a reasonable cause, for * * * two years; or * * * (f) Shall have offered such indignities to the person of the injured and innocent spouse, as to render his or her condition intolerable and life burdensome; * * *'.

The lower Court properly dismissed Dr....