McCoy v. McCoy

Decision Date25 June 1921
Docket Number33902
Citation183 N.W. 377,191 Iowa 973
PartiesD. W. MCCOY, Appellant, v. J. F. MCCOY, Appellee
CourtIowa Supreme Court

Appeal from Taylor District Court.--HOMER A. FULLER, Judge.

SUIT by plaintiff against her former husband, asking a decree for alimony supplementary to her decree of divorce obtained by her in Arkansas, wherein no alimony was allowed. She also prayed an allowance for the support of a minor child of the marriage. Upon motion of the defendant, the allegations of the petition upon which plaintiff predicated her claims for allowance of alimony to herself were stricken. Plaintiff appeals.

Affirmed.

W. C Van Houten and Wisdom & Kirketeg, for appellant.

J. R Locke, for appellee.

EVANS C. J. WEAVER, PRESTON, and DE GRAFF, JJ., concur.

OPINION

EVANS, C. J.

The parties were married in Iowa, in June, 1898. At some later time, they removed to Arkansas, where the plaintiff obtained a divorce from the defendant, in August, 1919. The ground of the divorce was the alleged desertion of plaintiff by the defendant for one year prior to the bringing of her action. The defendant was served by publication only. He was advised, however, of the pendency of the suit; and, in accordance with the procedure provided in that state, he was warned personally by letter to appear and make his defense. He did not appear. The court, therefore, obtained no personal jurisdiction over him. He had no property in the state of Arkansas, nor, for that matter, in any other state. He was earning a good salary, and could properly have been adjudged to pay some amount of alimony, if the court had had personal jurisdiction of him. The decree of divorce was entered in plaintiff's favor, without any provision therein for alimony. The plaintiff, therefore, has brought this action, and has obtained personal jurisdiction of the defendant. The question presented by the ruling of the court in sustaining the defendant's motion is whether, after absolute decree of divorce has been awarded to plaintiff, either in a court of this state or of any other, she can maintain a second independent suit for alimony. The plaintiff does not question the integrity of her decree of divorce. On the contrary, she asserts it as legal and binding. It is not a case, therefore, where it is sought to set aside a former decree of divorce for the purpose of obtaining a retrial, and of obtaining additional relief thereby.

The argument for the plaintiff is that she could not obtain alimony in the Arkansas court for want of jurisdiction; that the question of alimony, therefore, is not adjudicated; that she is, therefore, entitled to adjudicate it wherever she can obtain jurisdiction of the defendant. The argument has its plausibility, and has the support of respectable authorities. There is much in it that appeals to the sense of equity; and, if it were res integra in this state, it might well command much consideration. On the other hand, the question is one which has been often considered by the courts of many states, and it must be said that the great weight of authority is against the contention of the plaintiff. In this state, the question is quite foreclosed by our previous decisions. The question was directly involved in our recent case of Spain v. Spain, 177 Iowa 249, 158 N.W. 529, wherein the question is quite fully discussed. We will not repeat the discussion now. The cited case is supported by the following of our previous cases: Blythe v. Blythe, 25 Iowa 266; Wilde v. Wilde, 36 Iowa 319; Marvin v. Marvin, 59 Iowa 699, 13 N.W. 851; Boyles v. Latham, 61 Iowa 174, 16 N.W. 68; Shaw v. Shaw, 92 Iowa 722, 61 N.W. 368. The general ground upon which these holdings are based was that alimony is an incident of the marriage relation; that it can only be allowed where the marriage relation exists; that it may be allowed as a part of the decree of divorce; that the severance of the marriage relation by absolute decree, without alimony, terminates the right to alimony.

In cases where the existence...

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