Opinion
No. 4028.
Decided October 2, 1951.
In legal separation proceedings resulting in a decree for the libelant wife the dismissal of the libelee's cross-libel pursuant to his consent "if grounds for legal separation were found" in the libelant's favor was a judgment of the court on the merits barring another action for the same cause. Hence, in the absence of fraud or other equitable ground for vacating the decree in such proceedings the judgment therein is determinative and is a bar to the maintenance of a subsequent libel for divorce, by the libelee in the prior action, which alleged no grounds for divorce subsequent to or differing from those in the separation proceedings.
LIBEL FOR DIVORCE. Libelee's demurrer sustained by Goodnow, C.J. who transferred the libelant's exceptions in the following reserved case:
"This is a libel for divorce entered August 14, 1950, by Charles J. Desaulnier, in which after due allegation of their marriage on April 27, 1937, at Portsmouth, and the continuous residence of both of them in New Hampshire from that date until the date of this libel, he alleged that the said Mabel had brought a petition for legal separation against him on March 27, 1946, alleging extreme cruelty, and that he in answer thereto had filed a cross libel alleging extreme cruelty, namely, an assault upon him on April 5, 1945, and treatment such as to seriously injure his health and endanger his reason; that by reason of his inability to live with her he signed stipulations in settlement of their property rights, alimony, support of their minor child, and withdrew his opposition to the petition for legal separation and consented to a dismissal of his libel, if grounds for legal separation were found; that when said matter came up for hearing on March 27, 1946, his answer and cross libel [were] marked `Dismissed' and her petition marked `Legal separation decreed; cause extreme cruelty,' and `Stipulation made a part of the above decree.'
"In his libel filed August 14, 1950, he further alleged that they had lived apart since said decree, that he had conformed to the Court's orders with respect to stipulations; that he had sought resumption of relationship with his wife but she had refused; that it was in the interest of both parties that separation become absolute and divorce be granted; that a cause for divorce existed to him at the time he brought his said libel, signed said stipulation for settlement, and does still exist; that property settlement was completed in accord therewith; that there was no reason for disturbing the custody of their minor child and it should remain with her; that he would continue his payments for support; that accordingly he alleged his causes for divorce as in the prior libel set forth; and moved that an order of dismissal as therein entered be recalled, his libel brought forward and a hearing on the merits had.
"The libelee demurred on the ground that the libel failed to set forth cause of action entitling Charles to a divorce or other relief. The Court granted the demurrer."
Cooper, Hall Cooper and John M. Brant for the libelant.
Charles F. Hartnett for the libelee.
A legal separation in this state, originally authorized by Laws 1909, c. 68, has "the effect of a divorce" only to the extent provided by statute and is synonymous with a limited divorce. Veino v. Veino, 96 N.H. 439, 440. A legal separation differs from an absolute divorce (R.L. c. 339, s. 6) in that the parties are not "free to marry any third person" (R.L., c. 339, s. 24), the name of the wife cannot be changed (s. 25) and the parties may at any time resume marital relations after filing a written declaration of such resumption with the Clerk of the Superior Court for the county in which the separation was decreed. Paille v. Paille, 91 N.H. 249; R.L., c. 339, ss. 26-28.
Although the legal separation granted the wife was entered pursuant to the stipulation of the parties and the withdrawal of the opposition of the husband, the resulting decree was nevertheless the conclusion of the court and not merely a private agreement between the parties. Eaton v. Eaton, 90 N.H. 4. Likewise the dismissal of the husband's cross-libel pursuant to his consent "if grounds for legal separation were found" was a judgment of the court on the merits barring another action for the same cause. See Moore v. Lebanon, 96 N.H. 20. While a decree of legal separation does not necessarily preclude a subsequent divorce (Schouler Divorce Manual, s. 145; anno. 138 A.L.R. 346; Cf. Cochrane v. Cochrane, 303 Mass. 467), the effect of the prior proceedings in this case was an adjudication that the wife was entitled to a legal separation for extreme cruelty and that the husband was not entitled to an absolute divorce on the grounds of extreme cruelty or treatment seriously injurious to health. See Wilmot v. Wilmot, 94 N.H. 483; Poulicakos v. Poulicakos, 94 N.H. 233. Since there is no fraud or other equitable ground for vacating the prior proceedings (Bussey v. Bussey, 95 N.H. 349) and since the present libel does not rely on grounds for divorce subsequent to or different from those in the first cross-libel (Geers v. Geers, 95 N.H. 316; Sandberg v. Sandberg, 81 N.H. 317, 318), the prior proceedings are determinative of the present one. Brown v. Brown, 37 N.H. 536; 2 Freeman, Judgments (5th ed.) s. 907.
Exception overruled.
All concurred.