Defendant contends that the trial court committed error in failing to allow his motions for judgment on the pleadings under Rule 12(c) and for summary judgment under Rule 56(b). These contentions are without merit.
The pertinent parts of the statute (G.S. 50-6) under which plaintiff was proceeding in both actions read:
“Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.”
This section creates an independent cause of divorce. Pickens v. Pickens, 258 N.C. 84, 127 S.E. 2d 889 (1962). It is the law in North Carolina that a spouse may defeat an action of the other spouse for divorce by establishing as an affirmative defense that such spouse was guilty of misconduct which, in itself, would be a ground for divorce. Hicks v. Hicks, 275 N.C. 370, 167 S.E. 2d 761 (1969). However, the burden of pleading, as well as establishing such affirmative defense, is on the defendant. G.S. 1A-1, Rule 8(c) ; Overby v. Overby, 272 N.C. 636, 158 S.E. 2d 799 (1968) ; Taylor v. Taylor, 225 N.C. 80, 33 S.E. 2d 492 (1945). “And in order for such a defense to' succeed, the person pleading it must prove it with the same character of evidence and the same certainty as if he were setting up a ground for divorce. 1 Lee, North Carolina Family Law, § 88, at 343 (2d ed. 1963); 1 Nelson, Divorce and Annulment, § 10.05, at 366 (2d ed. 1945).” Hicks v. Hicks, supra.
The verdict of the jury at the trial in June, 1969 did not establish that the plaintiff was guilty of any criminal conduct or unlawful abandonment of the defendant. The recriminatory allegation in the defense to the first divorce case was that plaintiff “abandoned the defendant by leaving a note saying, T am gone.’ ” This is not an allegation of a criminal act. The jury found that the separation on 12 June 1967 was brought about by “the fault of” the plaintiff and did not specifically find that plaintiff was guilty of any criminal conduct or that she had unlawfully abandoned the defendant. We hold that the trial court did not commit error in denying defendant’s motions for judgment on the pleadings and for summary judgment.
Defendant also contends that the trial court committed error in refusing to allow his plea of res judicata. In doing so, defendant contends that the stigma of the original “fault” of the plaintiff, as found by the jury in the 1969 trial, is sufficient to forever bar an action by plaintiff against defendant for a divorce on the grounds of separation. Under the circumstances of this case, we do not agree.
The first action for divorce by this plaintiff terminated on 19 June 1969 in defendant’s favor because the plaintiff was found by the jury to have been “at fault” on the occasion of the separation on 12 June 1967. The separation alleged in the case
In Shaw v. Eaves, 262 N.C. 656, 138 S.E. 2d 520 (1964), it is said:
“ * * * In order for a judgment to constitute res judicata in a subsequent action there must be identity of parties, subject matter, issues and relief demanded, and it is required further that the estoppel be mutual. Light Co. v. Insurance Co., 238 N.C. 679, 79 S.E. 2d 167, Stansel v. McIntyre, 237 N.C. 148, 74 S.E. 2d 345; Cameron v. Cameron, 235 N.C. 82, 68 S.E. 2d 796; Leary v. Land Bank, 215 N.C. 501, 2 S.E. 2d 570. In order for a party to be barred by the doctrine of res judicata, it is necessary not only that he should have had an opportunity for a hearing but also that the identical question must have been considered and determined adversely to him. Crosland-Cullen Co. v. Crosland, 249 N.C. 167, 105 S.E. 2d 655. * * * ”
The doctrine of res judicata has been held to apply to divorce actions as well as other civil actions. Garner v. Garner, 268 N.C. 664, 151 S.E. 2d 553 (1966). In order for the doctrine of res judicata to apply, there must be “identity of parties, subject matter, issues and relief demanded, and it is required further that the estoppel be mutual.” In this case the parties, the subject matter insofar as it relates to obtaining a divorce on the grounds of separation, and the relief demanded, to-wit, an absolute divorce, are identical to those in the first divorce action, but the issues are not the same. In this case no issue was raised in the pleadings or evidence as to the question of recrimination. The issues as to the time of residence, as well as to the period of separation, were different in the two cases. We hold that the trial court did not err in denying defendant’s plea of res judicata.
We have examined all of defendant’s assignments of error and are of the opinion that the defendant has had a fair trial free from prejudicial error.
Affirmed.