Chapman v. Chapman

• Decision Date: 02 February 1917
• Citation: 192 S.W. 448,269 Mo. 663
• Parties: FANNIE E. CHAPMAN, Appellant, v. FRED E. CHAPMAN and WALTER CHAPMAN
• Court: Missouri Supreme Court

192 S.W. 448

269 Mo. 663

FANNIE E. CHAPMAN, Appellant, v. FRED E. CHAPMAN and WALTER CHAPMAN

Supreme Court of Missouri, Second Division

February 2, 1917

Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.

Affirmed.

Henry H. Oberschelp for appellant.

The trial court erred in not awarding alimony and rendering judgment therefor against the real estate set forth in the petition and publication. (1) If a defendant is not personally served and does not enter a voluntary appearance a personal judgment cannot be rendered. Nevertheless, as the State has control over the marriage status of its inhabitants and also over property within its boundaries, in a suit for divorce and alimony, based on service by publication, the court may acquire jurisdiction to render a judgment in rem not only as to the marriage status, dissolving it, but also as to the property within the State, subjecting it to alimony award of the court, if the proper foundation is laid by the pleadings and the process. Wesner v. O'Brien, 56 Kan. 724; Harshberger v. Harshberger, 26 Iowa 503; Benner v. Benner, 63 Ohio St. 220; Hanscom v Hanscom, 6 Colo.App. 97; Pennoyer v. Neff, 95 U.S. 714; Moss v. Fitch, 212 Mo. 498; Ellison v. Martin, 53 Mo. 578. (2) In suits for divorce and alimony based on service by publication, in considering the extent of the court's jurisdiction in rendering a judgment in rem, there are two distinct res to be considered; one the marriage status to be dissolved; the other the husband's property within the State sought to be subjected to the alimony award of the court. Cases under point one. (3) Jurisdiction as to these separate res depends mainly upon the allegations in the petition and order of publication. If both set forth the marriage and prayer for its dissolution, the court acquires jurisdiction over the marriage status. But for the court also to acquire jurisdiction over the property to be subjected to the alimony award, both must also set forth the husband's ownership of certain real estate in the State, fully describe the same with prayer to establish and enforce alimony award against said property. Cases under point one. (4) While this precise question has never been presented to the appellate courts of this State, yet the Supreme Court and this Court of Appeals have clearly indicated that if it were they would award alimony and enforce it against the thus described real estate. Moss v. Fitch, 212 Mo. 498; Ellison v. Martin, 53 Mo. 578; Elvins v. Elvins, 176 Mo.App. 645. (5) Wherever husband's property within a State has thus been brought under the control of the court in suits for divorce and alimony, throughout the United States, according to the published decision, alimony has always been awarded and enforced as a special judgment in rem against the described property. Wesner v. O'Brien, 56 Kan. 724; Harshberger v. Harshberger, 26 Iowa 503; Benner v. Benner, 63 Ohio St. 220; Hanscom v. Hanscom, 6 Colo.App. 97. (6) The sections of the Revised Statutes under the heading Divorce and Alimony, sections 2370-2381, contain no provision for process. Any judgment on constructive service for its validity as to the divorce as well as to the alimony depends upon publication in accordance with section 1770 et seq. Sec. 1770, R. S. 1909, authorized the publication to dissolve the marriage, as this is a suit "in divorce," and it likewise authorized the publication for the purpose of rendering a judgment in rem for alimony against the property mentioned, as it may be regarded as enforcement of a lien, and most certainly is an action which has for its "immediate object the enforcement or establishment of a lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court." Benner v. Benner, 63 Ohio St. 226. (7) As property of the husband has been brought under the control of the court by the pleadings and process, and the evidence showed and the court found it to belong to the husband, it was the duty as well as the right of the court not only to grant divorce but also to award alimony and enforce the same against said property. Sec. 2375, R. S. 1909.

ROY, C. White, C., not sitting.

OPINION

ROY, C.

Plaintiff sued for divorce and alimony. The trial court granted the divorce, but refused the alimony. She appealed to the St. Louis Court of Appeals, where, in an opinion by Allen, J., the judgment was reversed and the cause remanded. Reynolds, P. J., filed a dissenting opinion, and deemed the majority opinion in conflict with Moss v. Fitch, 212 Mo. 484, 111 S.W. 475, and State ex rel. v. Blair, 238 Mo. 132, 142 S.W. 326. The cause was accordingly certified to this court. Both the opinions in the Court of Appeals and that of Judge Shields of the trial court are found in 185 S.W. 221.

The suit was begun September 1, 1914. Successive writs of summons were returned "not found."

On August 5, 1915, she filed an amended petition in which Walter Chapman, a brother of the original defendant, was made a party defendant. It alleged the necessary residence of the plaintiff in the city of St. Louis, and also alleged indignities, vagrancy, desertion and failure to support as the grounds for divorce. It also alleged that she was without means of support; that defendant purchased and paid for two pieces of real estate therein described, one in the city and the other in the county of St. Louis, and had the title thereto put in the defendant Walter Chapman, who paid nothing therefor, and who was holding the title in trust for Fred E. Chapman; that said Fred E. Chapman had absconded and absented himself from his usual place of abode in this State, and had concealed himself so that the ordinary process of the law could not be served upon him; that defendant Walter Chapman was a non-resident of the State, and could not be served in this State in the manner prescribed by law. There was no allegation that the title to the land was put in Walter Chapman in fraud of plaintiff's rights. The prayer for relief was as follows:

"Plaintiff therefore prays for an order of publication against both defendants and that plaintiff be divorced from the bonds of matrimony contracted as aforesaid with the defendant, Fred E. Chapman, and that the court will adjudge to her permanent alimony in gross for her support and maintenance and alimony pendente lite and her attorney's fees and suit money and costs and enforce and establish the same as a lawful right, claim and demand to and against said real estate within the jurisdiction of this court, and enforce the performance of the judgment by sequestration of said property and such other lawful ways and means as is according to the practice of the court; that a receiver be appointed to take charge of said property, that the defendants be enjoined from selling or in any wise disposing of or encumbering or injuring said property, and that plaintiff be restored to her former name, Fannie P. Price, and make such further orders and judgments touching the premises as may be proper."

There was an order of publication, which was duly published, and which recited all the facts stated in the petition including the description of the real estate and the prayer for relief as made in the petition.

Both defendants made default. The evidence in every respect supported the allegations of the petition. The plaintiff's evidence was a pitiful narration of the brutal treatment, neglect and desertion of plaintiff by her husband. The evidence showed each of the properties to be worth something over $ 4000, with an encumbrance of $ 2000 on each, and that the title was put in Walter Chapman prior to the marriage of plaintiff with Fred E. Chapman. The trial court found that the property belonged to Fred E. Chapman, and gave plaintiff a divorce, but refused a judgment for alimony, on the ground that the court had no jurisdiction on a constructive service to render a judgment for alimony.

The fact that the able jurists, including the trial judge, who have passed on this case are equally and radically divided prompts us to proceed with extreme caution.

It should be conceded that the jurisdiction of the courts in this State to hear and determine suits for divorce and alimony depends upon and is limited by the statutes. [Doyle v. Doyle, 26 Mo. 545; McIntire v. McIntire, 80 Mo. 470; State ex rel. v. Grimm, 239 Mo. 340, 143 S.W. 450.]

II. On the other hand, the action for divorce and alimony, the defenses thereto, and the proceedings therein, are, as far as suited to our day, and situation, controlled by the law of the English ecclesiastical courts (common law with us) as modified, changed, or, in some matters, supplanted by our statutes.

In Stokes v. Stokes, 1 Mo. 320, it was said: "The proceeding in this case is not a common law or chancery proceeding, but is a proceeding sui generis, founded on the statute. But as the statute makes use of terms used in the ecclesiastical courts, where alone divorces are prosecuted in England, we think the rules of that court should govern, as far as they may be applicable to our institutions in law."

In Twyman v. Twyman, 27 Mo. 383, Scott, J., who had then recently written the Doyle case, supra, held that condonation would defeat the action for divorce. The doctrine as to condonation comes from the ecclesiastical law (1 Bishop on Marriage and Divorce, p. 129), and not from our statute.

In State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216 it was said: "Payment of such alimony may undoubtedly be enforced by execution and sequestration of property. But the power of the court does not end here. Though we have no ecclesiastical courts, still original jurisdiction in divorce matters is conferred upon the circuit courts; and since we have...