Narisi v. Narisi

• Decision Date: 01 May 1961
• Docket Number: No. 5-2361,5-2361
• Citation: 233 Ark. 525,345 S.W.2d 620
• Parties: Norma J. NARISI, Appellant, v. Vincent J. NARISI, Appellee.
• Court: Arkansas Supreme Court

Page 620

345 S.W.2d 620

233 Ark. 525

Norma J. NARISI, Appellant, v. Vincent J. NARISI, Appellee.

No. 5-2361.

Supreme Court of Arkansas.

May 1, 1961.

Heilbron, Shaw & Beasley, Fort Smith, for appellant.

Warner, Warner & Ragon, Fort Smith, Wright, Lindsey, Jennings, Lester & Shults, Little Rock, for appellee.

McFADDIN, Justice.

This is the second time these parties have presented ther marital difficulties to this Court. The first case was Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757. There, each party sought a divorce on the ground of indignities (the fifth ground for divorce stated in § 34-1202, Ark.Stats.); and we denied a divorce, saying that each was 'equally at fault.' The second (present) case was initiated on May 31, 1960, when Mr. Narisi filed suit for divorce on the seventh ground stated in § 34-1202, Ark.Stats., i. e., that the parties had lived separate and apart for three years. Mrs. Narisi cross-complained and likewise sought a divorce on the same ground, i. e., three years separation. The Chancery Court, in the decree from which comes this appeal, granted each party ¹ a divorce on the ground alleged. The Court also awarded Mrs. Narisi the custody of the children and made provisions for residence in the home, alimony, and child support, as to all of which there are no objections by either party. But the Trial Court refused to award Mrs. Narisi any dower interest in the property of Mr. Narisi; and from such refusal Mrs. Narisi prosecutes this appeal. Her right to dower is the sole issue on this appeal.

I. Res Judicata. The Trial Court refused Mrs. Narisi's claim to dower on the basis that the holding of this Court in the first case was res judicata ² in the finding that she was 'equally at fault.' In support of the ruling of the Trial Court, Mr. Narisi's attorneys point out in their brief: (a) that the seventh ground for divorce stated in § 34-1202, Ark.Stats. says: 'And the question of who is the injured party shall be considered only in cases wherein by the pleadings the wife seeks either alimony * * * or a division of property * * * or both'; (b) that § 34-1203, Ark.Stats. says: 'The injured party in all such cases may apply for such decree of divorce * * *'; (c) that § 34-1214, Ark.Stats. says: '* * * and the wife so granted a divorce against the husband * * * shall be entitled to one-third (1/3) of the husband's personal property absolutely, and one-third (1/3) of all the lands * * * for her life * * *'; (d) that in the first Narisi case [229 Ark. 1059, 320 S.W.2d 760] we refused Mrs. Narisi a divorce and held that she was 'equally at fault'; and (e) that if Mrs. Narisi was equally at fault in the first case, she is not the 'injured party' in the present case.

From these recited matters the appellee stoutly insists that our holding in the first case is res judicata of Mrs. Narisi's claim for dower in the present case; and appellee cites: Ray v. Ray, 192 Ark. 660, 93 S.W.2d 665; Carty v. Carty, 217 Ark. 610, 232 S.W.2d 446, 447; Edwards v. Edwards, 222 Ark. 626, 262 S.W.2d 130; Martin v. Martin, 225 Ark. 677, 284 S.W.2d 647; White v. White, 228 Ark. 732, 310 S.W.2d 216. We disagree with the ruling of the Trial Court on the matter of res judicata and also with the reasoning of the appellee as above set forth; and we hold that the rule of res judicata ³ is not applicable to the present case. That the rule of res judicata may apply in divorce cases has been recognized repeatedly. McKay v. McKay, 172 Ark. 918, 290 S.W. 951; Woodcock v. Woodcock, 202 Ark. 809, 152 S.W.2d 1013; Ball v. Ball, 189 Ark. 975, 76 S.W.2d 71. But in McKay v. McKay, supra, we said: 'We think the present suit of appellant is not barred by the decree in the first suit, for the reason that she alleges a different cause [of action] for divorce, one which could not have existed when she filed her first suit--that of desertion--as the parties had not been separated a year when the first suit was commenced.' [172 Ark. 918, 290 S.W. 952]. In 17 Am.Jur. 638, Divorce and Separation, § 543, the rule as to res judicata divorce cases is stated: 'As a general rule, a final judgment rendered by a court of competent jurisdiction on the merits is conclusive of the rights of the parties and their privies, and as to them constitutes a bar to a subsequent action involving the same claim, demand, and cause of action.' (Emphasis supplied.) And in § 546 of the same article, in discussing when causes of action are different the holdings are summarized: 'In determining whether the causes of action involved in two cases are the same, the determining factor is whether the evidence necessary to sustain the second case is essentially the same as was required to sustain the first.' ⁴

In McKay v. McKay, supra, we recognized that the various grounds for divorce constitute separate causes of action. So, here, the rule of res judicata cannot be applicable because the cause of action is not the same in the two cases. In the first suit, the cause of action was because of indignities, and in the present suit the cause of action is because of three years separation. The Narisis separated on May 30, 1957, and shortly thereafter Mrs. Narisi filed the suit for divorce on the ground of indignities (the fifth ground in § 34-1202, Ark.Stats.); and Mr. Narisi, in his cross-complaint, also claimed indignities. The opinion of this Court in the first case was delivered on February 2, 1959, and at that time the Narisis had not lived separate and apart for three years. So neither of them had a cause of action under the seventh ground for divorce as listed in § 34-1202, Ark.Stats., which is the ground for divorce here relied upon. It was not until May 30, 1960, that either of the parties had a cause of action under the three-year separation statute, which is an entirely different cause of action from indignities. The rule of res judicata in divorce suits applies only when the second suit is on the same cause of action as the first suit; and, as we have demonstrated, that situation does not exist in the case at bar. So we hold that the rule of res judicata does not apply in the present case. ⁵

II. Disposition Of The Present Case. Having decided that the plea of res judicata should not have been sustained by the Trial Court, we are confronted with the problem of what disposition should now be made of the case by this Court. In the oral argument, this matter was propounded to appellant's counsel; and we learned that as far as Mrs. Narisi is concerned, we have before us now all of the evidence that could be presented: we have all of the record in the present case, as well as Mrs. Narisi's 'offer to prove'; ⁶ and we have also the entire transcript of the proceedings and evidence in the first case, ⁷ which, in itself, consists of 1,146 typewritten pages. The general rule in equity cases is that, with all of the record fully developed, we should finally decide the case instead of remanding it to the Chancery Court for a new trial. In Pickett v. Ferguson, 45 Ark. 177, Mr. Justice W. W. Smith said: 'And it is our invariable practice not to remand chancery cases for further proceedings and proofs, where we can plainly see what the rights and equities of the parties are, but to render such decree here as should have been rendered below.' In Crease v. Lawrence, 48 Ark. 312, 3 S.W. 196, 197, Mr. Justice Battle said: 'As the cause was ready for hearing, we proceed to consider the merits, and to render such decree as should have been entered below.' And in Wilborn v. Elston, 209 Ark. 670, 191 S.W.2d 961, 962, Mr. Justice Millwee said: 'We try chancery cases de novo, and the usual practice on appeal is to end the controversy here by final judgment, or by direction to the trial court to enter a final decree.'

We therefore proceed to determine on all the records before us whether Mrs. Narisi is entitled to dower in addition to the alimony and allowances she received. ⁸ It must be borne in mind that we are here concerned with a divorce granted under the seventh subdivision of § 34-1202, Ark.Stats., the germane portion of which reads: '* * * and the question of who is the injured party shall be considered only in cases wherein by the pleadings the wife seeks either alimony under Section 34-1211, Arkansas Statutes 1947, or a division of property under Section 34-1214, Arkansas Statutes 1947, as hereby amended, or both.'

The determination of who is the 'injured party', as those words are used in the quoted language above, opens wide the door for the Court to consider matters and events extending beyond the five-year period which limits evidence of recrimination in other divorce actions. Alexander v. Alexander, 227 Ark. 938, 302 S.W.2d 781. The Alexander case is also authority for the holding that, in considering who is the injured party under the seventh subdivision of § 34-1202, Ark.Stats., the Court is not required to make a full award of dower but may reduce the dower in keeping with the equities of the case. There, we reduced the wife's dower to one-half of what the statute provides under § 34-1214, Ark.Stats.

When the divorce is awarded under the seventh subdivision (i. e., three years separation), the determination of property rights is much different from the awards made under any of the first six subdivisions ⁹ of § 34-1202, Ark.Stats. The legislative and judicial history of the seventh subdivision of § 34-1202 points unerringly to the conclusion that the Trial Court in the first instance, and this Court on appeal, has a broad discretion in determining property rights and alimony rights when the divorce is granted under the seventh subdivision, i. e., three years separation. By Act No. 167 of 1937, the Legislature attempted to make three years separation a ground for divorce. This Act was considered in White v. White, 196 Ark. 29, 116 S.W.2d 616; and because of that opinion the Legislature of 1939 passed Act No. 20 and, for the first time, there appeared the...