WILMOT v. WILMOT, 94 N.H. 483 (1947)

56 A.2d 13

FRED O. WILMOT v. ARLENE C. WILMOT.

No. 3692.Supreme Court of New Hampshire Hillsborough.
Decided December 2, 1947.

A finding in a proceeding for separate maintenance against a husband that he abandoned his wife “without cause” is an adjudication of the issues sought to be raised in a subsequent action for divorce instituted by him where the misconduct on the part of the wife which he alleges as a cause for divorce, occurred prior to the hearing on the merits of the separate maintenance proceeding.

LIBEL FOR DIVORCE, filed August 24, 1946, by Fred O. Wilmot against Arlene C. Wilmot alleging extreme cruelty since 1938 and continuing until November 1945. The libelee filed a motion to dismiss on the ground that the issues between the parties had been adjudicated in her favor by a final decree dated June 25, 1946, rendered after a hearing on the merits upon her petition for separate maintenance filed December 27, 1945. This decree awarded her separate maintenance and support.

The question raised by this motion was transferred without ruling by Lampron, J.

John J. Broderick, for the libelant, submitted no brief.

John D. Warren, by brief, for the libelee.

BLANDIN, J.

The libelee’s motion to dismiss must be granted. Under R. L., c. 339, s. 29, the causes and procedure in petitions for separate maintenance are identical, so far as material, with those in divorce proceedings. According to the libelant, all misconduct on the part of the libelee which he alleges as cause for a divorce occurred prior to the hearing upon which a decree of separate maintenance with support was rendered in her favor. This decree stating that “on or about December 10, 1945 the petitionee, without sufficient cause and without the consent of the petitioner, abandoned the petitioner, and since said abandonment has refused . . . to cohabit with her, and that said abandonment and refusal to cohabit if continued will be a cause for divorce in favor of the petitioner, . . .”, is in effect a finding that the husband then had no cause for divorce, while the wife had grounds which if continued would be a cause for divorce. This adjudication upon the merits binds the libelant as to the issues which he now seeks to raise. Poulicakos v. Poulicakos, ante, 233, 235;

Page 484

Brown v. Brown, 37 N.H. 536; Chesley v. Duncklee, 77 N.H. 263, and cases cited; Bottomly v. Parmenter, 85 N.H. 322. See also, Wallace v. Wallace, 74 N.H. 256, 257; Lovejoy v. Ashworth, ante, 8, 10. It follows that the order must be

Libel dismissed.

DUNCAN, J., did not sit: the others concurred.