Bennett v. Tomlinson

• Decision Date: 13 November 1928
• Docket Number: 39136
• Citation: 221 N.W. 837,206 Iowa 1075
• Parties: CATHERINE A. BENNETT, Appellee, v. I. H. TOMLINSON, Executor, Appellant
• Court: Iowa Supreme Court

221 N.W. 837

206 Iowa 1075

CATHERINE A. BENNETT, Appellee, v. I. H. TOMLINSON, Executor, Appellant

No. 39136

Supreme Court of Iowa, Des Moines

November 13, 1928

Appeal from Polk District Court.--HERMAN F. ZEUCH, Judge.

Claim against decedent's estate on foreign judgment against decedent for separate maintenance. The district court allowed the claim. The executor appeals.

Affirmed.

Claude R. Porter and I. H. Tomlinson, for appellant.

Stipp Perry, Bannister & Starzinger and D. D. Holdoegel, for appellee.

MORLING J. STEVENS, C. J., and DE GRAFF, ALBERT, and WAGNER, JJ concur.

OPINION

MORLING, J.

Decedent and claimant intermarried in Illinois, where they were then living, on April 2, 1885, and thereupon took up their matrimonial domicile in that state. They never had a matrimonial domicile elsewhere. On February 15, 1897, decedent filed in one of the circuit courts of Illinois a bill for divorce for desertion. Claimant answered, and also filed cross bill for separate maintenance. On March 19, 1897, decree in that cause was entered, sustaining the cross bill, and allowing claimant $ 144 per year, commencing March 19, 1897, payable in monthly installments in advance on the 19th day of each month until the further order of the court. About that time, decedent absconded from Illinois. On October 25, 1898, decree was rendered by the district court of Wapello County, Iowa, at the suit of decedent, divorcing him from claimant for desertion. The undisputed evidence is that "no notice of any kind was served upon me [claimant] with regard to the divorce proceedings in Iowa. * * * I did not appear in this divorce proceeding." It is assumed in argument, though not shown in evidence, or by recital in the divorce decree, that the divorce was granted on notice by publication. Decedent remarried. When does not appear. Claimant never remarried, and never moved from Illinois. The undisputed evidence of claimant also is:

"Mr. Bennett made payments in accordance with the provisions of the separate maintenance decree, as set out in the exhibit, from 1908 to 1917. Haven't received any money since that time. These payments were all made by Mr. Bennett to me. He just put the money in envelopes."

There was a daughter, 10 or 14 or 15 years old at the time the separate maintenance decree was rendered. Appellant suggests, but without evidence, that the money was for the daughter. This daughter, however, when the last payments were made, was more than 30 years old. The evidence shows that, at the time of this trial, she had been three times married. The exhibit referred to, which is from September 1, 1907, only, to decedent's death, November 3, 1926, shows payment of various sums, ranging from $ 10 to $ 215, from 1908 to 1917, only two of the installments falling due during that period being credited as paid in full. Claimant testifies that she learned that decedent had got a divorce and remarried in Iowa five or six years after the proceedings in the Illinois court. "Mr. Bennett never told me in his letters that he had remarried again. He told my daughter." This is all the evidence on the question of decedent's remarriage. There is no indication in the record here that decedent ever questioned or sought a modification of the decree for separate maintenance, or that claimant ever questioned the Iowa decree of divorce. The executor summarizes his reasons for asking a reversal: 1. That the separate maintenance decree was not a final judgment, under the full-faith-and-credit clause; is barred by the 20-year statute of limitations. 2. The Iowa decree "cut off and barred any further right of the claimant to any future payments of separate maintenance. 3. It was not alimony rendered in a decree of divorce, which might be called a continuing judgment, but it was merely an order temporary or interlocutory, for the payment of separate maintenance and support, based upon the fact that she was then his wife, and that she had the care, custody, and control of their minor child."

Judgment for separate maintenance is based on the relationship of husband and wife, and as to unmatured installments is ordinarily dependent upon the continuance of the marriage relation, as recognized by the law of the place where rendered. Judgment for permanent alimony is founded on the dissolution of the marriage. The law governing in the latter case, therefore, does not necessarily control in the other, though the analogy in many cases may be quite complete. The Iowa decree is for divorce only, and quasi in rem. 34 Corpus Juris 1176. In order for it to have validity, the res, the marriage relation or status, must have been within the jurisdiction of the Iowa court. Jurisdiction of the res depends on domicile, either the matrimonial domicile or the actual good-faith domicile of one of the parties within the state in which the divorce is granted. The evidence is undisputed that the only matrimonial domicile was in Illinois. Both parties were citizens of that state. The decree of divorce makes no reference whatever to the residence or domicile of either of the parties. The only evidence on the subject is claimant's:

"I knew my husband had come to Iowa, but not when he left me, he didn't. It was five or six years after he left me. I couldn't tell the exact date. Q. So far as you know, he lived in Iowa until about the time he came back to Aledo and commenced the suit that has been offered here in evidence,--isn't that a fact? A. Well, I think he lived in Illinois before he tried that suit. I couldn't say that he came right back to Iowa after that was over. He skipped Illinois. He left Aledo, where the suit was had. I learned he was remarried quite a while after that."

The suit referred to was the suit for divorce, in which claimant got her decree for separate maintenance. On this evidence neither the matrimonial nor claimant's domicile was removed from Illinois. 19 Corpus Juris 27, 32. We need not pause to discuss the question whether the presumption in favor of the jurisdiction of the Iowa court arising from the decree is, as to decedent's domicile, overcome. Claimant, a citizen of Illinois, not within the territorial jurisdiction of Iowa, was not served with notice within that jurisdiction, nor did she appear. That court had no jurisdiction in personam of her, and could not and did not undertake to determine her rights with respect to property, alimony, or the Illinois decree for separate maintenance. The Iowa decree, neither in Iowa nor elsewhere, affected more than the marriage status, and even as to that had no extra-territorial effect, other than that which might be given to it by comity. Miller v. Miller, 200 Iowa 1193, 206 N.W. 262; Corkum v. Clark (Mass.), 161 N.E. 912, 915. On the other hand, the judgment of the Illinois court was in personam, between parties within its jurisdiction, and for each installment, as it became due, was entitled to full faith and credit. (Case infra.) The Illinois court has never been asked to recognize the Iowa divorce, either by application to it for modification or otherwise. The Illinois decree became a final judgment for the recovery of each installment as the installments fell due, and claimant's right therein was fixed in each of them as it matured. The power of modification ceased as to any installment falling due before application for modification was made. Sistare v. Sistare, 218 U.S. 1 (54 L.Ed. 905, 30 S.Ct. 682); Barber v. Barber, 21 HOW 582, 16 L.Ed. 226; Wagner v. Wagner, 26 R.I. 27 (57 A. 1058). The full-faith-and-credit clause attached to such installments as they, without previous application for modification, matured. Idem. This court has repeatedly applied the doctrine of finality to such installments in alimony cases. Delbridge v. Sears, 179 Iowa 526, 160 N.W. 218; Kell v. Kell, 179 Iowa 647, 161 N.W. 634; Matson v. Matson, 186 Iowa 607, 173 N.W. 127. We are of the opinion that, under the facts of the case, this rule must be...