KAVANAGH, J.
Plaintiff filed a bill of complaint in the Saginaw county circuit court on May 22, 1957, praying for divorce from the bonds of matrimony, custody of the minor child, temporary and permanent alimony, support and maintenance, court costs, and a temporary injunction restraining the defendant from attempting to interfere with plaintiff's sole custody of the minor child.
Plaintiff alleges a previous divorce case in the Saginaw circuit court. Following a decision by the lower court that plaintiff's bill of complaint should be dismissed and defendant granted a decree on his cross bill, appeals were taken by the parties to the Supreme Court. The Supreme Court, as reported in Sovereign v. Sovereign, 347 Mich. 205, found that the actions of both parties were such that neither party was entitled to a decree of divorce. The Court authorized the entry of a decree in the circuit court dismissing the bill and cross bill.
Plaintiff further alleges that subsequent to the decision in the Supreme Court on December 6, 1956, that said defendant has been guilty of several acts of extreme and repeated cruelty: (1) that defendant has failed to provide a home for the plaintiff and the minor child of the parties; (2) that defendant has failed to support and maintain this plaintiff and has contributed absolutely nothing to her support and maintenance since December 6, 1956; (3) that defendant has contributed nothing to the support and maintenance of the minor child of the parties; (4) that said defendant has deliberately provoked additional financial burdens upon plaintiff by filing annulment proceedings in the Bay county circuit court; (5) that the defendant is a man of substantial financial means and has substantial income and ability to provide support and maintenance for plaintiff and the minor child of the parties.
See 354 Mich. 65. — REPORTER.
On May 29, 1957, defendant moved the court to dismiss the bill of complaint filed in the above entitled cause; to dismiss the petition for temporary alimony, support and attorney fees, and to dissolve the temporary injunction heretofore issued for the following reasons:
"1. The bill of complaint does not state a cause of action.
"2. The court has no jurisdiction over the subject matter of the action.
"3. The action is barred by a prior decree.
"4. There is a prior action pending between the same parties involving the same subject matter in another court of equal and concurrent jurisdiction.
"5. The plaintiff is wholly without equity and is barred from equitable relief by her prior misconduct and current adulterous association with a Mr. V.
"6. The temporary injunction was improvidently and improperly issued.
"7. The proceeding is brought in bad faith, with full knowledge that plaintiff does not come into court with clean hands and is barred from equitable relief.
"8. The proceeding is a fraud upon the court in that the bill of complaint does not disclose all the facts which it is plaintiff's duty to disclose to the court."
On May 31, 1957, plaintiff filed an answer to the motion to dismiss, and on July 16, 1957, filed an amended bill of complaint. She alleges, under paragraph 5-a, that she has continued to live in the home of the parties; that she has ceased the actions complained of which would be a basis for a divorce action against her; that she has conducted herself properly as befitting a loyal and devoted wife to her marital obilgations; that she has continued to rear and care for the minor child, and has been a good and kind mother to him; that following the decision of December 6, 1956, she expected that defendant would likewise reform his conduct; that she expected defendant to return to his domicile so that they could attempt to make a success of their marriage and rear the minor child of the parties in a normal home; that defendant has refrained from so doing, and through his attorney has informed plaintiff that no reconciliation will ever be possible.
On July 19, 1957, the trial court filed a written opinion granting the motion to dismiss. On July 22, 1957, an order was entered dismissing the plaintiff's bill of complaint. The order included a finding that in the absence of condonation or a reversal of the finding of the trial court, the rule of res judicata applies.
From the opinion of the trial court it would appear that his reasons for granting the motion to dismiss were: (1) the lack of clean hands on the part of plaintiff; and (2) the decision in the previous action rendered res judicata a determination of all matters growing out of the matrimonial relationship. No testimony was taken. The bill of complaint is a sworn bill of complaint.
This Court has often said that for a defense of res judicata to be successfully pleaded it must involve the same subject matter, the same parties. Tucker v. Rohrback, 13 Mich. 73; Love v. Francis, 63 Mich. 181 (6 Am St Rep 290); McDannel v. Black, 270 Mich. 305; Reid v. Gooden, 282 Mich. 495; Hammitt v. Straley, 338 Mich. 587; Austin v. Painters' District Council, 339 Mich. 462.
In this action the same subject matter is not involved since the acts of extreme and repeated cruelty relied upon by plaintiff in her sworn bill of complaint are acts subsequent to the decision of the Supreme Court in the previous case on December 6, 1956. Certainly the law would not forever relieve the defendant of any future marital duties simply because in a prior decree it was determined that he had been guilty of misconduct which would justify the Court in refusing him a decree of divorce. His obligation to resume and carry on the responsibilities and duties of the married life, including support of his wife and minor child, remains with him until a dissolution of the marital relationship. As a wrongdoer he is not beyond the pale of the law in the sense that he is relieved of these obligations. His failure to perform them subsequent to December 6, 1956, might be evidence of extreme and repeated cruelty which would justify a court to grant plaintiff a decree of divorce. The rule is found in 17 Am Jur, Divorce and Separation, § 554, p 650, as follows:
"It is only when enough has occurred since the rendition of the first decree to entitle the plaintiff to relief that a divorce will be granted in the subsequent proceeding." (Citing People, ex rel. Healy, v. Case, 241 Ill. 279 [89 N.E. 638, 25 LRA NS 578]; Brown v. Brown, 37 N.H. 536 [75 Am Dec 154]; Ford v. Ford, 25 Okla. 785 [ 108 P. 366, 27 LRA NS 856]; Farquar v. Farquar, 20 Or. 69 [25 P. 146, 23 Am St Rep 93]; Averbuch v. Averbuch, 80 Wn. 257 [141 P. 701, Ann Cas 1916B, 873]; Vickers v. Vickers, 95 W. Va. 323 [ 122 S.E. 279, 41 ALR 266].)
In Silberstein v. Silberstein, 218 N.Y. 525 ( 113 N.E. 495), the wife sued for a separation from her husband. The court found that her charges were not proved against the husband, but that the wife was guilty of abandonment and desertion. The court entered a dismissal of the action. Subsequent to the dismissal she asked to return to him, but he refused to live with her or to contribute to her support. The wife then brought a second suit for separation. The husband, in defense of the second suit, asserted that the former judgment was conclusive evidence, not only of his innocence, but of her guilt, and that the abandonment put an end to his duty to her forever. Justice Cardozo wrote the opinion on appeal, and said (p 528):
"We think the judgment in the first action does not have the effect which has thus far been attributed to it."
In the later case of Mirizio v. Mirizio, 248 N.Y. 175 ( 161 NE 461), Justice Cardozo, again writing the opinion for the court on the same issue said (pp 179, 181):
"We are told that her error has barred his door to her forever. * * * Whatever her errors may have been, the plaintiff is the defendant's wife. He has never offered her a home, nor paid a dollar to maintain her. Not yet has the law released him from the duty of support."
In the case of Bennett v. Bennett, 336 Mich. 133, Chief Justice DETHMERS, writing the opinion for the Court, mentions the 2-month period following the decree dismissing the first suit (p 135):
"We cannot say, on an examination of the entire record, that, had we been in the position of the trial judge, we would have found otherwise than he did with respect to the conflicting claims of parties concerning the conduct of each during that period."
The Court refused to reverse the lower court in the Bennett Case for the reasons that the trial judge heard the witnesses, observed their demeanor and was in the best position to determine their credibility and to conclude what the facts in the case really were. No mention was made by the Supreme Court that a dismissal of the previous bill precluded the introduction of testimony with reference to a new period.
In the Michigan case of Herp v. Herp, 254 Mich. 33, Justice NELSON SHARPE, writing the opinion for the Court, said (p 35):
"On this record, the evidence of the refusal or neglect of the defendant must be confined to the time between August, 1929, when the former bill was dismissed, and January 15, 1930, when this bill was filed."
The Michigan case of Dowhan v. Dowhan, 303 Mich. 197, dealing with a factual situation similar to the one in the instant case, held as follows (p 199):
"The instant suit in Oakland county, based on new and different facts which arose subsequent to the original suit in Wayne county, is not barred by the principle of res judicata or estoppel by judgment; nor is the second action barred by an appeal pending in the first action."
The Court went on to say that this question was considered by the supreme court of Georgia in Slaughter v. Slaughter, 190 Ga. 229 ( 9 S.E.2d 70, 129 ALR 156), and that other authorities on the same subject are annotated in 26 LRA NS beginning at page 577. Justice BUSHNELL then quoted from the Slaughter Case as follows (p 200):
"`These later acts could not have been alleged in the former suit and could not have been passed on by the court in that case. * * *
"`If the second suit cannot be maintained, it is only because of the principle of res judicata or of estoppel by judgment. * * * The doctrine of res judicata is to be applied only when the cause of action is the same. * * * The doctrine of estoppel by judgment is applied only as to such matters within the scope of the pleadings in the previous litigation as necessarily had to be adjudicated in order for the previous judgment or decree to be rendered, or as to such matters within the scope of the pleadings as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined.'" ( Slaughter v. Slaughter, supra, 230.)
The Court in the Dowhan Case also quoted from Paynton v. Paynton, 194 Mich. 504, 507, as follows (p 200):
"`The decree of the Illinois court seems to have been a final decree establishing the fact that defendant was not an habitual drunkard when it was rendered in 1911; but that, of course, would have no tendency to show that she had not become one when this suit was begun in 1915.'"
On a motion to dismiss it is elementary that we consider the matters well pleaded in the bill of complaint to be true for the purpose of disposition of the motion to dismiss. It would therefore appear that the circuit court should not have granted the motion to dismiss for the reasons given, since the matter is not res judicata as to the new period. If, on a new trial of the cause, it develops that plaintiff is still continuing the old acts, then, certainly, the defense of recrimination would be available to defendant, and a denial of plaintiff's prayer for a decree of divorce could be entered.
For the above reasons, the decision of the lower court granting the motion to dismiss is reversed and the cause is remanded.
DETHMERS, C.J., and CARR, KELLY, SMITH, BLACK, EDWARDS, and VOELKER, JJ., concurred.
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