Leahy v. Leahy

• Decision Date: 14 November 1956
• Parties: James P. LEAHY, Appellant, v. Marllyn A. LEAHY, Respondent.
• Court: Oregon Supreme Court

Page 952

303 P.2d 952

208 Or. 659

James P. LEAHY, Appellant, v. Marllyn A. LEAHY, Respondent.

Supreme Court of Oregon, In Banc.

Submitted on Briefs Oct. 11, 1956.

Decided Nov. 14, 1956.

Leo Levenson and Phillip J. Roth, Portland, for appellant.

Meindl, Mize & Kriesien, Portland, for respondent.

TOOZE, Justice

This is a suit to obtain a decree of separation from bed and board on the ground of willful desertion, brought by James P. Leahy, as plaintiff, against Marilyn A. Leahy, as defendant. Defendant filed a cross complaint for divorce upon the two separate grounds of cruel and inhuman treatment and willful desertion for a period of one year. The trial court dismissed the complaint and awarded a divorce to the defendant; plaintiff appeals therefrom.

The parties to this suit are young people, having been married on February 14, 1953, and no children were born of said marriage. On July 16, 1953, defendant left plaintiff, returned to her parents' home, and has lived there continually since that date. Defendant commenced a suit in the circuit court for Multnomah county to obtain a divorce on the ground of cruel and inhuman treatment on April 1, 1954. A trial was held before Judge Virgil H. Langtry, who on October 27, 1954, signed and caused to be entered of record a document entitled 'opinion,' wherein it was stated that the parties were in pari delicto and that the complaint and cross complaint are therefore dismissed.

Plaintiff on March 21, 1955, commenced this suit for separation from bed and board. On April 13, 1955, defendant moved to vacate the decree of October 27, 1954, and reopen the original case. Plaintiff opposed this motion on the grounds that the so-called opinion of October 27 was, in truth, the final decree of the court, and that the court was without authority to vacate the decree after the term at which it was rendered. Judge Langtry denied the motion. On June 7, 1955, despite his denial of this motion, the trial judge signed and recorded another document dismissing the original suit, which was entitled 'Judgment.'

On July 22, 1955, defendant filed her cross complaint in the instant suit, asking for a decree of divorce in her favor on the ground of willful desertion for a period of more than one year. On October 26, 1955, a decree was entered dismissing the plaintiff's complaint and granting a divorce to defendant. The only question for determination on this appeal is whether the divorce should have been granted.

Plaintiff contends that the decree in the prior suit is res judicata as to defendant's right to a divorce in this suit. We stated the general doctrine of res judicata in Wagner v. Savage, 195 Or. 128, 146, 244 P.2d 161, 169, as follows:

'The law is well established that a final judgment rendered by a court of competent jurisdiction, on the merits, is conclusive as to the rights of the parties and their privies, and as to them constitutes an absolute bar to a subsequent action involving the same claim, demand, and cause of action. However, if the two suits do not involve the same claim, demand, and cause of action, such effect will not ordinarily be given to the prior judgment. To give such effect, there must not only be identity of subject matter, but also of the cause of action, so that a judgment in a former action does not operate to bar the subsequent action, where the cause of action is not the same, although each action relates to the same subject matter.' (Italics ours.)

Also see State v. Dewey, 206 Or. 496, 504, 292 P.2d 799.

With respect to res judicata, two questions are involved:

(1) Is a suit brought on the ground of cruel and inhuman treatment a bar to a subsequent suit brought on the ground of constructive desertion, when the facts tending to prove the desertion are some of the same facts, which were proved or could have been proved in in the prior suit to show cruel and inhuman treatment?

(2) Does a decree determining that the parties are in pari delicto with reference to a complaint and cross complaint for divorce on the ground of cruel and inhuman treatment necessarily determine that the defendant was herself at fault for the resulting separation, and thus prevent her from now claiming that the plaintiff's acts amounted to constructive desertion?

The prior adjudication with reference to the question whether the defendant is entitled to a divorce on the ground of cruel and inhuman treatment is not and could not have been an adjudication of the question whether she has a cause of action on the ground of desertion.

The several grounds for divorce are set forth in the statute as separate and distinct causes of action. ORS 107.030 states:

'The dissolution of the marriage contract may be declared at the suit or claim of the injured party for any of the following causes:

* * *

* * * '(5) Wilfull desertion for the period of one year.

'(6) Cruel and inhuman treatment or personal indignities rendering life burdensome.'

Not only are the formal causes of action totally different, but the elements of each are entirely different. To prove cruel and inhuman treatment, the claimant must prove the acts of cruelty, and that such acts rendered life burdensome; but to prove constructive desertion, the claimant must prove the acts causing the separation, must prove that the desertion has continued for more than one year, and that no sincere efforts of reconciliation have been made by the one whose acts caused the separation. Because a cause of action for desertion requires the lapse of a period of one year, defendant could not have presented the ground of desertion in the prior case, for on April 1, 1954, when her complaint was filed in that suit, only eight and one-half months had elapsed since the separation.

If defendant had relied upon constructive desertion in the prior suit, the result would have been a dismissal of her complaint, but such dismissal would not have been res judicata to another suit after the time had elapsed. This occurred in Hewitt v. Hewitt, 120 W.Va. 151, 152, 197 S.E. 297, where the Supreme Court of West Virginia said:

'* * * The demurrer was correctly sustained to the husband's cross-bill in the separate maintenance suit because at the time of the filing of the cross-bill, the statutory period of two years had not elapsed. Therefore, there is no basis for Artie J. Hewitt's contention in the present case that the question of desertion stands res judicata.'

The Nevada Supreme Court also considered this question in Sweet v. Sweet, 49 Nev. 254, 259, 243 P. 817, 818. The court said:

'It is obvious that there is no identity between a cause of action for divorce for cruelty and a cause of action for a divorce for desertion. They form separate and distinct issues governed and controlled by different rules of evidence, and each constitutes a separate and distinct statutory ground for divorce under the laws of both Connecticut and Nevada. The fact that the plaintiff's former suit for intolerable cruelty was dismissed for insufficiency of proof is no bar to the present action for desertion, even though the defendant's acts and conduct were of such nature as to cause the separation.'

The question was again considered by the Tennessee Supreme Court in Copeland v. Copeland, 180 Tenn. 609, 610, 177 S.W.2d 555, where the court stated:

'It appears from the plea that the complainant had previously brought a suit against defendant for a divorce in the circuit court of Fentress County charging her with cruel and inhuman conduct and adultery. She answered the bill, proof was heard, and the circuit judge dismissed the suit. It is true that in this bill a charge of willful and malicious desertion was made, stating that it began on June 17, 1941. The circuit court bill, however, was filed in December, 1942 and a judgment rendered in that court on April 13, 1943. Willful and malicious desertion, therefore, was not and could not have been an issue in that case since two years had not elapsed even at the disposition of the case. So it follows the former judgment cannot be pleaded as res judicata in this suit in so far as it is based on willful and malicious desertion for two whole years.'

We conclude, therefore, that the prior suit on the ground of cruel and inhuman treatment in not a bar to the present suit on the ground of willful desertion. This conclusion, however, and the above authorities do not answer the contention of plaintiff that the former adjudication that the parties were in pari delicto bars defendant's present suit based upon the theory of constructive desertion. In support of his contention plaintiff cites Matlock v. Matlock, 83 Or. 78, 167 P. 311. Some of the language used in that case would seem to support the position taken by the plaintiff, but upon close examination of the factual situation involved it is found that there is a distinction to be drawn between that case and the one now before us. The first Matlock case was one in which both plaintiff and defendant asked for divorce upon the grounds of cruel and inhuman treatment, and the cruelty involved on both sides was 'mental,' rather than 'physical,' cruelty. In the instant case, the charges of cruelty in the first suit were based in part upon physical violence on the part of the husband, and mental cruelty on the part of the wife. The first Matlock case was dismissed by the Supreme Court under the in pari delicto doctrine. Matlock v. Matlock, 72 Or. 330, 331, 143 P. 1010, 1011. Mr. Justice McNary said: 'When the conduct of the parties is reprehensible to a kindred degree the court ought not to interfere at the instance of either.' (Italics ours.) 'Kindred' means of like nature or properties. In the Matlock case the alleged cruelty on both sides was of the same type, viz.: acts of mental cruelty. Therefore, in considering the decision in the second Matlock case, 86 Or. 78, 167 P. 311, upon the question of res judicata, it must be viewed in the light of the factual situation, and the...