Opinion
No. 4550.
Argued January 3, 1957.
Decided January 31, 1957.
Where a decree of legal separation had already been granted to the plaintiff the issue raised by defendant's motion to vacate the decree and enter one in her favor upon the filing of plaintiff's motion to amend the decree to one of divorce was res judicata and her motion was properly denied.
The question whether plaintiff's motion to amend the decree of legal separation to one of divorce should be granted is for the Trial Court to determine in the exercise of its discretion as to what justice requires, and not as a matter of law.
MOTION, by the plaintiff, Joseph Ouellette, to bring forward and amend a decree of legal separation to one of divorce. The defendant, Alexina Ouellette, filed an answer and "cross-motion" to vacate the original decree of separation and to enter such a decree in her favor. The plaintiff originally filed a libel for divorce on March 1, 1955. The defendant filed an answer and a hearing was held on the merits. At the close of the plaintiff's evidence a recess was taken and he was allowed to amend his libel to a petition for legal separation and a stipulation by the parties was executed and approved by the Court which granted the plaintiff a legal separation. On January 6, 1956, the plaintiff filed a motion to amend to a decree of divorce and the defendant filed her answer and "cross-motion" in response. There was a trial by the Court at which time the defendant produced the transcript of the evidence taken at the previous hearing. No further testimony was introduced by either party. The Court granted the plaintiff's motion to amend and entered a decree of divorce in the plaintiff's favor as a matter of law while denying the defendant's motion subject to her exception. Reserved and transferred by Griffith, J. Other facts appear in the opinion.
Danais, Loughlin Danais (Mr. Robert Danais orally), for the plaintiff.
Devine Millimet (Mr. Shane Devine orally), for the defendant.
The questions raised by the defendant's exceptions are whether the Court erred in granting as a matter of law the plaintiff's motion to bring forward his original petition for legal separation and amend the decree of legal separation founded thereon to one of divorce, and in denying the defendant's motion to vacate the original decree and enter one in her favor.
It is true that a legal separation or limited divorce as it is sometimes called (RSA 458:26) is a different cause of action from an absolute divorce. RSA 458:7; Desaulnier v. Desaulnier, 97 N.H. 171, 172, and authorities cited. However, the plaintiff was decreed a legal separation on the grounds of abandonment and refusal to cohabit on his original libel as amended. RSA 458:7 IX. It therefore appears the Court found that the plaintiff did and the defendant did not have a cause for legal separation. This issue has therefore become res judicata (Desaulnier v. Desaulnier, 97 N.H. 171; Poulicakos v. Poulicakos, 94 N.H. 233, 235) and so the Court's denial of the defendant's motion was not error.
However, a different question is presented by the plaintiff's motion which asks for further equitable relief. Whether this should be granted him is clearly a matter for the Court's discretion. Sandberg v. Sandberg, 81 N.H. 317. An examination of the record convinces us that the circumstances here are such that the Court has a strong duty to scrutinize "the total situation" (see Powell v. Powell, 97 N.H. 301, 303) after hearing all the evidence the parties may introduce on the question of whether justice requires that the plaintiff's motion be granted. Ela v. Ela, 63 N.H. 116, 122; Bussey v. Bussey, 95 N.H. 349. Since the plaintiff's motion was granted as a matter of law when discretion should have been exercised, there must be a new trial. Vallee v. Company, 89 N.H. 285, 291. It follows the order is
Remanded.
All concurred.