" Roden v. Roden, 29 Ariz. 549, 553 (1926). The doctrine binds the parties "not only upon facts actually litigated but also upon those points which might have been litigated." Gilbert, 155 Ariz. at 174 (emphasis added).
No fraud was perpetrated. Suttle v. Seely, supra, n. 4; Cochise Hotels, Inc. v. Douglas Hotel Operating Co., 1957, 83 Ariz. 40, 316 P.2d 290; DeGraff v. Smith, 1945, 62 Ariz. 261, 157 P.2d 342; Roden v. Roden, 1926, 29 Ariz. 549, 243 P. 413. A consent judgment is as much an adjudication on the merits as one following a trial.
Plaintiff also cites Roden v. Roden, 29 Ariz. 549, 243 P. 413 (1926) and Suttle v. Sealy, 94 Ariz. 161, 163-64, 382 P.2d 570, 572 (1963) for the proposition that an arbitration award constitutes res judicata because it has been a "final determination" on the merits of the case. See Roden v. Roden, 29 Ariz. at 549 and Suttle v. Sealy, 94 Ariz. at 163-64.
Both the C.J.S. provision cited by DeGraff and our cases before DeGraff align with this view. See 27 C.J.S. Dismissal and Nonsuit § 73, at 474 n.89 (1959) ("[A] dismissal with prejudice has a well-recognized legal import; it is converse of [the] term ‘without prejudice.’ "); Tootle-Campbell Dry Goods Co. v. Knott , 43 Ariz. 210, 213, 29 P.2d 1056 (1934) (concluding that a dismissal with prejudice of a case against defendants in their individual capacity barred a future suit on that theory but did not bar suit against them in their representative capacity); Berman v. Thomas , 41 Ariz. 457, 464, 19 P.2d 685 (1933) (acknowledging that a dismissal "with prejudice" served "as a bar to another action between the same parties over the same subject-matter"); Roden v. Roden , 29 Ariz. 549, 553, 243 P. 413 (1926) ("A judgment of dismissal ‘with prejudice’ is the same as a judgment for defendant upon the merits, and, of course, is res judicata as to every matter litigated." (citation omitted)).
¶ 17 A judgment may also be "on the merits" and thus have claim preclusive effect when it results from the stipulation of the parties, see Suttle v. Seely, 94 Ariz. 161, 163-64, 382 P.2d 570, 572 (1963), or various pre-trial rulings. E.g., Union Interchange, Inc. v. Van Aalsburg, 102 Ariz. 461, 464, 432 P.2d 589, 592 (1967) (noting that summary judgment is a judgment on the merits and a bar to a later suit on the same cause of action); Roden v. Roden, 29 Ariz. 549, 553, 243 P. 413, 415 (1926) (observing that "[a] judgment of dismissal `with prejudice' is the same as a judgment for defendant upon the merits, and, of course, is res judicata as to every matter litigated") (citation omitted); In re Forfeiture of $3,000.00 U.S. Currency, 164 Ariz. 120, 121, 791 P.2d 646, 647 (App. 1990) (holding that involuntary dismissal on substantive grounds was "on the merits" for purposes of A.R.S. § 12-504).
Further, the rule that the court in specifying support provisions in the original divorce decree is not bound by the agreement of the parties but will ascertain whether the agreement is fair and equitable (see Lindey, Separation Agreements and Ante-Nuptial Contracts, § 31, subds. 7A, 7B; Smith v. Smith, 71 Ariz. 315, 227 P.2d 214; Roden v. Roden, 29 Ariz. 398, 242 P. 337, rehearing denied 29 Ariz. 549, 243 P. 413), is consistent with our holding herein that the survival of an otherwise valid separation agreement does not deprive the court of power to modify the decree. Nor does the fact that the parties have agreed not to petition the court for a modification of the decree affect the court's jurisdiction; for as stated in Gillespie v. Gillespie, supra, 74 Ariz. at page 6, 242 P.2d at page 840:
The consent necessary to bar a divorce for desertion must be found in some affirmative conduct by the complainant amounting to participation in the conduct of the opposite spouse; silent acquiescence is not sufficient. The mere acceptance of a fixed determination to leave, or the failure of the innocent party to object to the other's departure, will not constitute consent; nor is the innocent party obliged to exert physical force or other importunity to prevent the other party from leaving. Roden v. Roden, 29 Ariz. 549, 243 P. 413; Pempek v. Pempek, 141 Conn. 602, 109 A.2d 238; Givner v. Givner, 201 Md. 333, 93 A.2d 563; Scholz v. Scholz, 113 Pa. Super. 359, 173 A. 761; McIntyre v. McIntyre, 92 Pa. Super. 310; 1 Nelson, Divorce and Annulment (2d ed.), § 4.12. Considering the testimony as a whole, a proper evaluation would seem to indicate that having failed in previous attempts to preserve the marriage and to hold the family together, appellant's attitude on her husband's departure reflected frustration, hopelessness, and resignation.
Section R 10-703, I.C.; 68 C.J.S., Partnership, § 235 b., page 728; 40 Am.Jur., Partnership, Section 446, pages 441-2. The dismissal with prejudice against the defendants, J.E. Davis and L.A. Davis barred any judgment against them individually or jointly. Pulley v. Chicago, R.I. P.R. Co., 122 Kan. 269, 251 P. 1100; Roden v. Roden, 29 Ariz. 549, 243 P. 413; Maib v. Maryland Casualty Co., 17 Wn.2d 47, 135 P.2d 71; Bank of America v. Jorjorian, 303 Ill.App. 184, 24 N.E.2d 896. The dismissal against J.E. and L.A. Davis prevented a joint judgment against all the partners on the partnership liability and operated as a dismissal against all the partners including the appellant, E.C. Davis.
There was no agreement of separation in this case. It was forced upon the plaintiff by the defendant's conduct, and after this desertion by the defendant it was immaterial to the plaintiff what she did or where she went — he knew he could not live with her. He agreed to send her a monthly stipend, which he did. This does not amount to an agreement for separation. ( Roden v. Roden (Ariz.), 243 P. 413.) Separation by consent must be voluntary, otherwise there is no consent. A separation by acts of cruelty preventing cohabitation negatives any consent.
Based on the court's stated reason for dismissing Erika's petition in its ruling on her motion for clarification, we view the dismissal as a determination on the merits and conclude it is an appealable judgment. Compare Roden v. Roden, 29 Ariz. 549, 553 (1926) ("A judgment of dismissal 'with prejudice' is the same as a judgment for defendant upon the merits."), and Ariz. R. Fam. Law P. 91(i)(1) (court can reject petition to modify for "failure to state grounds upon which relief can be granted"), with McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, ¶ 4 (App. 2009) (dismissal without prejudice is not appealable), and Ariz. R. Fam. Law P. 46(b). Dismissal of Petition on the Merits