Kirby v. Kirby , 26 N.C. App. 322 ( 1975 )

215 S.E.2d 798 (1975) 26 N.C. App. 322

Ralph KIRBY
v.
Virginia KIRBY.

No. 7528DC111.

Court of Appeals of North Carolina.

June 18, 1975.

Wade Hall, Asheville, for plaintiff appellant.

Adams, Hendon & Carson, P. A., by Philip G. Carson, Asheville, for defendant appellee.

MARTIN, Judge.

Plaintiff contends that the District Court erred in awarding alimony to defendant because her claim is barred by the judgment of 15 June 1973 under the doctrine of res judicata.

The record shows that in 1972 Virginia Kirby filed a petition in Virginia under the Uniform Reciprocal Enforcement of Support Act of that State, alleging that she was entitled to the support of her husband, Ralph Kirby, and that he had failed to provide adequate support. Since her husband resided in Asheville, North Carolina, the petition was transmitted to Buncombe County. As a result, judgment was entered on 15 June 1973 in Buncombe County by District Court Judge Israel. In that judgment, the court stated rather tangentially that the separation between the couple was caused by the wrongdoing of the petitioner, Mrs. Kirby. It then denied the petition by concluding that "since property is owned by the parties in the State of Virginia, . . the matter could properly be brought in a civil action for alimony and should be so brought rather than through the Uniform Reciprocal Enforcement of Support Act." Regardless of whether Mrs. Kirby's petition was properly denied due to the ownership of property in Virginia, her cross-claim for alimony in the present case was not barred by the 15 June 1973 judgment. Indeed, that judgment left open the possibility that alimony might be awarded in a future action.

"A judgment must be on the merits and not merely relate to matters of practice or procedure in order to have res judicata effect." 2 McIntosh, N.C. Practice and Procedure, § 1732 (2d Ed., Phillips Supp. (1970)). In the 15 June 1973 judgment, it appears that Judge Israel intended to dispose of the action on procedural grounds rather than on the merits. In the judgment appealed from in the present case, Judge Israel refers to his judgment of 15 June 1973 and finds, inter alia:

"12. That the Judgment in Buncombe County Case No. 72 CVD 2795 offered by the Plaintiff into evidence and entered by the undersigned Judge on or about June 15, 1973, as a result of the institution of a reciprocal support action contemplates by its terms the institution of a civil action for alimony by the Defendant and that said Judgment was entered without the Defendant being represented by counsel, without an appearance on behalf of the Defendant by the solicitor, and without a hearing at which the Defendant was present and said Order is not supported by Findings of Fact and that the said Judgment is not a bar to the alimony action of the Defendant."

Plaintiff also argues that the judgment of 15 June 1973 constituted a judicial separation such as will legalize the separation and deprive defendant of her recriminatory defense. Either an action for a divorce a mensa et thoro, an action for alimony without divorce under former G.S. § 50-16, or a valid separation agreement may constitute a legalized separation which thereafter will permit either of the parties to obtain an absolute divorce on the ground of one year's separation. Harrington v. Harrington, 286 N.C. 260, 210 S.E.2d 190 (1974). In the present case, the disposition of the 15 June 1973 judgment on procedural grounds did not deprive the wife of the use of abandonment as a defense to the action for divorce.

Next, plaintiff contends that the court erred in awarding alimony because the evidence clearly showed that the separation was caused by the wrongdoing of defendant. In pertinent part, the court found as a fact that plaintiff left the State of Virginia on his own volition; that his departure was not due to any wrongdoing of defendant; that plaintiff abandoned defendant; and that the separation was a result of such abandonment. In our opinion, the evidence was sufficient to support the challenged findings of fact. The facts as found by the court supported its conclusions of law and the judgment entered thereon.

In the trial we find no prejudicial error, and the judgment appealed from is

Affirmed.

BRITT and HEDRICK, JJ., concur.