Jacobs, Eastwood, and Bigelow. The opinion of the court was delivered by Bigelow, J.A.D. Jacobs, S.j.a.d. (concurring).
This is a matrimonial cause with some unusual complications in the law, but with little dispute over the material facts. The complaint contains three causes of action, of which the last two were added by amendment three months after the original complaint was filed, embodying only the first claim. The first count or claim alleges: The parties were married in 1933 by the city clerk at the Municipal Building in New York. The plaintiff obtained a final decree of divorce from the defendant in 1937, in the Circuit Court for Dade County, in the State of Florida. The decree contained no provision for alimony or for the support of plaintiff. After the decree was entered, the defendant gave her $1,000 in money and $15,000 in securities, and he has made no provision for her since. The plaintiff is destitute, in poor health and has no means of support. She prays judgment compelling defendant to support her. The answer to the first claim denies the validity of the marriage for reasons that need not be presently stated, and, among other defenses, pleads res adjudicata: That plaintiff in 1939 instituted a suit in the Court of Chancery of New Jersey on the same cause of action, and a final decree was entered therein dismissing the bill.
The second and third causes of action, which were added to the complaint after the first count had been answered, allege that the defendant asserts that the Florida decree is void and without legal effect. Plaintiff contends that the Florida divorce is valid, yet if it be void, she avers: The parties were lawfully married and "were husband and wife and considered each other as such under the common law." Then follow, in the usual form, a charge of desertion and a charge of adultery with one Helen Chirelstein. "The defendant and this co-respondent live together and represent themselves to be lawfully married and that they are husband and wife." Plaintiff demands a judgment of divorce from bed and board and for alimony. In answer to these counts, the defendant denies that he and plaintiff were validly married
or were husband and wife. He says he does not contend that the Florida divorce is void, but only that it does not establish the validity of plaintiff's pretended marriage to him. The defendant counterclaims for a declaratory judgment that the plaintiff was never validly married to him.
The defendant's second wife, Helen Chirelstein, and their two infant children were permitted to intervene and answered and counterclaimed. They ask a declaratory judgment establishing the validity of the Florida divorce.
The Chancery Division, after receiving testimony, adjudged that:
"1. The pretended ceremonial marriage between the plaintiff and the defendant made in the City, County and State of New York on January 9, 1934, was absolutely void and also a nullity.
2. There never was any common-law marriage between the plaintiff and the defendant nor were they ever validly married to each other.
3. The decree of divorce obtained in the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida, is not entitled to full faith and credit for the purpose of establishing the validity of the pretended marriage between the plaintiff and the defendant in the State of New York as aforesaid because of the fraud practiced by the plaintiff wherein and whereby the aforesaid divorce was obtained by the plaintiff.
4. The facts disclosed at the trial were such that the plaintiff is not entitled to alimony.
5. The plaintiff's application for alimony is hereby denied."
We will deal with the questions presented on a somewhat different plan from that followed in the Chancery Division by our colleague, Judge Schettino, whose opinion appears in 8 N.J. Super. 504 (1950). Assuming that the parties were at one time husband and wife, and that they were validly divorced, as alleged in the first claim, let us consider whether plaintiff is barred from her action for alimony by the Chancery decree. The material allegations of the first count and of the bill of complaint that was filed in 1939, are the same, and the relief prayed is the same. Both were framed on the same theory, namely, that the 1938 amendment to R.S. 2:50-37, L. 1938, p. 538, gave plaintiff a cause of action for
alimony based on the Florida divorce. The defendant moved in the earlier suit to dismiss the bill "on the ground that the matters and things set forth in the bill of complaint do not show any ground for equitable relief." That motion was granted and upon it a final decree was entered "that the complainant's bill of complaint be and the same is hereby dismissed with prejudice."
The phrase "with prejudice," which is somewhat unusual in this jurisdiction, must be noticed. The use of the expression is more common in the western states, Annotation , 149 A.L.R. 625. Especially upon the voluntary dismissal of an action as a result of a settlement, it is inserted to indicate finality, Bank of America v. Jorjorian , 24 N.E. (2 d) 896 (Ill. 1940); Maib v. Maryland Casualty Co. , 135 P. (2 d) 71 (Wash. 1943). When the dismissal with prejudice is not voluntary, it has been said to imply a decision on the merits. But where the record shows that the action was dismissed for want of prosecution, or other reason that does not touch the merits, the addition of the words "with prejudice" cannot change the facts and the plaintiff is not concluded. Pueblo de Taos v. Archuleta , 64 F. (2 d) 807 (10 th Cir. 1933); Goddard v. Security Title etc. Co. , 83 P. (2 d) 24; 92 P. (2 d) 804 (Cal. 1939). In an order like the one that we have under consideration, the phrase is as apt to confuse as to enlighten.
According to the practice of the Court of Chancery since 1915, a motion to strike a bill on the ground that there is disclosed no cause of action, was the equivalent of a general demurrer. It is the rule that a final judgment for the defendant on the ground that the complaint fails to state a cause of action is conclusive. While the plaintiff is generally not precluded from maintaining a new suit on his original cause of action, provided his second complaint contains new allegations remedying the defect that made his first complaint demurrable, yet he cannot relitigate the question that has already been decided. He cannot sue a second time on what is substantially his old complaint. Restatement, Judgments ,
§ 50. Hale v. Lawrence , 22 N.J.L. 72, 80 (Sup. Ct. 1849); Linton v. Perry Knitting Co. , 64 N.E. (2) 270 (N.Y. 1945); Angel v. Bullington , 330 U.S. 183, 67 S. Ct. 657 (1946).
No opinion was filed in the Court of Chancery setting forth the reasons of the dismissal. Plaintiff's counsel surmises "that the court concluded that since the wife had taken a lump sum settlement after the foreign decree for divorce," she did not "present any cause for equitable relief." The defendant suggests that the court considered that the 1938 amendment to R.S. 2:50-37 did not authorize an award of alimony based on a foreign decree entered in 1937, that is, before the amendment became effective. It does not matter which was the ground of decision, for in either case, it was a decision on the merits and so concludes the parties. We recognize that there is a sense in which an alimony decree is not conclusive. Conditions may change: the needs of the former wife may grow with sickness, or the loss of other income; or she may remarry. Or the husband's ability to pay alimony may dwindle or grow. The court may make a new judgment based on the new situation. Lasasso v. Lasasso , 1 N.J. 324 (1949). But in the litigation before us, there has been no substantial change since the decree ...