Priscilla SMITH
v.
Albert N. SMITH, Jr.
No. 7319DC72.
Court of Appeals of North Carolina.
February 21, 1973.*569 Bell, Ogburn & Redding by Deane F. Bell, Asheboro, for plaintiff appellant.
Emanuel & Thompson by W. Hugh Thompson, Raleigh, for defendant appellee.
MORRIS, Judge.
Plaintiff assigns as error the trial court's dismissal of her action for alimony *570 without divorce and the termination of the order entered in that action for alimony pendente lite. At the time of the entry of Judge Warren's order dismissing the permanent alimony action, the case stood at the pleading stage, awaiting a new trial as ordered by the Court of Appeals [Smith v. Smith, 15 N.C.App. 180, 189 S.E.2d 525 (1972)], which had vacated the judgment for alimony without divorce previously entered in the Randolph County action.
Initially, we are confronted with the problem of whether it was procedurally permissible for Judge Warren to have entertained and allowed a motion to dismiss the cause pursuant to G.S. § 1A-1, Rules 41 and 60, prior to the new trial of the cause and in the absence of any judgment of the court. Rule 6 of the General Rules of Practice for the Superior and District Courts, Supplemental to the Rules of Civil Procedure, provides in part that "[a]ll motions, written or oral, shall state the rule number or numbers under which the movant is proceeding." It is apparent from a perusal of Rule 41 and Rule 60 that a motion for involuntary dismissal pursuant to those rules, prior to a trial of the cause, is improperly entertained, unless made on the specific grounds that the plaintiff has failed to prosecute or comply with the rules of civil procedure or any order of the court. See G.S. § 1A-1, Rule 41(b).
In like fashion, a motion made pursuant to Rule 7 as improperly entertained by the court for the reason that Rule 7 merely defines the form of motions made to the court. Nonetheless, the plaintiff herein has raised no objections to the method of procedure utilized by the defendant, and we have elected to treat the motion as one made pursuant to G.S. § 1A-1, Rule 12(b)(6).
G.S. § 1A-1, Rule 12(b) reads as follows:
"How presented.Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defense may at the option of the pleader be made by motion:
(1) Lack of jurisdiction over the subject matter,
(2) Lack of jurisdiction over the person,
(3) Improper venue or division,
(4) Insufficiency of process,
(5) Insufficiency of service of process,
(6) Failure to state a claim upon which relief can be granted,
(7) Failure to join a necessary party.
A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The consequences of failure to make such a motion shall be as provided in sections (g) and (h). No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense, numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."
From the rule itself, it may be seen that unless the defendant was entitled to raise *571 the affirmative defense of a prior judgment as a bar to the present action by a motion made pursuant to Rule 12(b)(1) through 12(b)(7), the defense must "be asserted in the responsive pleading thereto if one is required." The issue before us is whether the affirmative defense of a prior judgment as a bar to the present action may be raised by a Rule 12(b)(6) motion to dismiss the complaint for failure to state a claim upon which relief may be granted.
In Florasynth Laboratories v. Goldberg, 191 F.2d 877 (7th Cir. 1951), we find the following statement:
"The plaintiff also objects to the fact that the Court below dismissed the complaint on a motion to dismiss the complaint as not stating a cause of action as provided for by Rule 12(b)(6), Federal Rules of Civil Procedure, 28 U.S.C.A., instead of requiring an answer alleging the affirmative defense of res adjudicata as provided for by Rule 8(c) F.R.C.P.
. . . . . . .
The plaintiff admits `that certain exceptions have been made to the general rule (requiring an affirmative answer pleading res adjudicata) and that in certain instances a motion to dismiss on the ground of res adjudicata may be appropriate,' but says that `controlling factual identities for the purpose of res adjudicata must be clearly shown and cannot rest on mere assertion and speculation.' Here, however, we have much more than assertion and speculation. Here the defendants' motion to dismiss alleged facts, shown to be true by the Court's own records, which constituted a complete defense to the action alleged in the complaint. In W. E. Hedger Transportation Corporation v. Ira S. Bushey & Sons, 2 Cir., 186 F.2d 235, 237, the court stated that in such a case, `* * * there appears no good reason why an answer should be first required.'"
Moreover, by the provisions of Rule 12(b) itself, matters outside the pleading may be presented to the court and considered by it on a Rule 12(b)(6) motion to dismiss in which case the motion will be treated as one for summary judgment under Rule 56. At the common law, such a "speaking motion" was improper, but pursuant to Rule 12(b)(6), "speaking motions" have become permissible by statute. See 2A Moore's Federal Practice, ¶ 12.09[2], p. 2287. Logically, no distinction should be made "between a speaking motion tending to negative plaintiff's case, and a motion raising affirmative defenses; since the motion is to be treated as one for summary judgment, there is no reason why the existence of affirmative defenses may not be shown even though not appearing on the face of the complaint." 2A Moore's Federal Practice, ¶ 12.09[3] (4), p. 2307. See also Larter & Sons v. Dinkler Hotels Co., 199 F.2d 854 (5th Cir. 1952).
Judge Warren's order, dismissing the cause in the case at bar, recites the following findings of fact:
"3) By action numbered 71 CvD 8752, commenced in the Wake County District Court on December 15, 1971, the aforesaid Albert N. Smith, Jr. (defendant in the above entitled action), as plaintiff, filed an action for absolute divorce from the aforesaid Priscilla Smith (plaintiff in the above entitled action); that summons and complaint in said Wake County action were personally served on the defendant therein, said Priscilla Smith, by the Chatham County Sheriff Department on December 20, 1971; that said Wake County action came on for trial and was tried before the Honorable Samuel Pretlow Winborne, Judge Presiding, on January 21, 1972; that judgment was entered by the court on January 21, 1972, absolutely divorcing the aforesaid Albert N. Smith, Jr. and Priscilla Smith, who are the defendant and plaintiff respectively in the above entitled action; and that no appeal was or *572 has been taken from said judgment of Judge Winborne.
. . . . . .
5) Defendant's aforesaid verified Motion To Dismiss and attached exhibits, upon which this hearing was held and notice of said hearing at 9:30 a. m. on July 27, 1972, were served on plaintiff by mailing of the same to her attorney of record, Deane F. Bell, on July 11, 1972; and said motion, notice of hearing, and certificate of said service were filed with the Randolph County Clerk of Superior Court on July 12, 1972."
Plaintiff did not except to the aforesaid findings of fact, nor has she attempted to dispute the truthfulness of their recitals on appeal before this Court. We hold that, treating the defendant's motion to dismiss as having been made pursuant to Rule 12(b)(6), the trial court properly considered matters off the face of the record, gave the parties reasonable opportunity to present all material pertinent to a disposition of the case by summary judgment, Rule 56, and properly treated the motion as one for summary judgment, disposing of the case on its merits.
We are further of the opinion that the trial judge was correct in terminating the husband's obligation for payment of subsistence pendente lite and dismissing the action for alimony without divorce, as a matter of law, since no issue of fact was raised as to the validity of the judgment of absolute divorce granted in Wake County, which had the effect of ending the plaintiff's right to sue for alimony. Fullwood v. Fullwood, 270 N.C. 421, 154 S.E.2d 473 (1967); Smith v. Smith, 12 N.C.App. 378, 183 S.E.2d 283 (1971); McLeod v. McLeod, 1 N.C.App. 396, 161 S.E.2d 635 (1968).
The judgment appealed from is
Affirmed.
CAMPBELL and HEDRICK, JJ., concur.