Chapman v. Parsons, Judge.

• Decision Date: 23 November 1909
• Citation: 66 W.Va. 307
• Court: West Virginia Supreme Court
• Parties: Chapman v. Parsons, Judge.

66 W.Va. 307

Chapman

v.Parsons, Judge.

Supreme Court of Appeals of West Virginia.

Submitted November 16, 1909.

Decided November 23, 1909.

1. Divorce Alimony Jurisdiction to Award.

In no suit but one seeking a divorce of some character is there jurisdiction to award alimony pendente lite. (p. 309).

2. Same Alimony.

Alimony is only cognizable as between parties united by a marital relation that imposes upon the husband the legal duty to support the wife. (p. 310).

3. Same Duty to Maintain Wife.

A decree of divorce from bed and board without alimony dissolves the relation of husband and wife so far as the duly of the former to maintain the latter is concerned. (p. 310).

4. Husband and Wife Maintenance of Wife.

Where there is admittedly no relation that legally imposes the duty of the wife's maintenance on the husband, the law gives no power to make him maintain her. (p. 311).

5. Divoece Alimony Suit to Set Aside Decree.

There is no jurisdiction to award alimony as between parties divorced from bed and board, as incident to the pendency of an independent suit to set aside the decree of divorce for fraud, and before the decree is successfully assailed. (p. 312).

Application by Frank A. Chapman for the writ of prohibition to William A. Parsons, Judge of the Circuit Court of Mason county, and another.

Writ Awarded.

B. II. Blagg and Somerville & Somerville, for petitioner.

Rankin Wiley, for respondent, Mary A. Chapman.

Pobinson, Judge:

Upon an original application to this Court by Frank A. Chapman for the writ of prohibition to be awarded against the Honorable William A. Parsons, Judge of the Circuit Court of Mason county, and Mary A. Chapman, the following pertinent facts are disclosed:

In the suit of Frank A. Chapman against Mary A. Chapman, in the circuit court of Mason county, a decree of divorce from bed and board was granted the plaintiff at the March Term, 1908. The defendant in that suit, though duly summoned, did not appear. The plaintiff's case was proved by depositions. Upon the face of the proceedings everything in support of the decree is regular and proper. The decree was based upon desertion. No alimony to the wife was allowed by the decree.

Near a year later Mary A. Chapman filed her bill against Frank A. Chapman, in the same court, attacking the decree of divorce as one obtained by fraud. In this bill no divorce was sought, It was distinctly for the purpose of having a divorce set aside. No other relief was asked. While it is perhaps not al together pertinent to the matter now before us, yet we observe that nothing is alleged in this bill but that which should have been offered as defense to the suit in which the decree was obtained. It seems that all the matters alleged were known to the plaintiff before the decree of divorce was entered. Frank A. Chapman demurred to the bill and filed an answer specifically denying the allegations made against the validity of the decree. At the June Term, 1909, in this suit to annul the decree, an order was made that the defendant, Frank A. Chapman, pay to the plaintiff, Mary A. Chapman, the sum of fifty dollars to enable her to prosecute her suit. Frank A. Chapman was advised by counsel that the court had no power to make such order for suit money in the cause, but that it would be well to pay it so that there could be a prompt hearing as to the charges of fraud. The sum was paid. Then at the October Term, 1909, the court decreed that the defendant, Frank A. Chapman, pay to the plaintiff, Mary A. Chapman, the sum of ten dollars per month until the next term of court, as alimony pending the suit to annul the decree. The cause was thereupon continued., It is asserted, and not denied, that at this time the case was ready for a hearing. The defendant was insisting that it be submitted and decided.

The power of the court to make the order for alimony pending such suit is put in question by these proceedings for the writ of prohibition. The petition for the writ and the resistance of Mary A. Chapman thereto, by her demurrer and answer, raise a single question: Is there jurisdiction to award alimony pendente lite as between parties divorced from bed and board, merely as incident to an independent suit which has for its only purpose the annullment of the decree of divorce for fraud in its procurement?

The court had jurisdiction of the suit to set aside the decree of divorce for fraud. But that jurisdiction did not give the court power to enter therein any order or decree beyond its lawful power in the premises. Whether prohibition lies in any case is tested by the court's power, or want of power, to do the act sought to be prohibited. If power is lacking there is no jurisdiction. "If, in the progress of a pending cause over which the court has jurisdiction, as to both subject matter and parties, or at the inception thereof, an order, judgment, or decree is en- tered which, for any reason, the court has no power to enter, the entry thereof is an act in excess of the jurisdiction of the court." Powhatan Coal & Coke Co. v. Ritz, Judge, 60 W. Va. 395. Clearly, if temporary alimony is not lawfully incident to a suit attacking a decree of divorce as fraudulent, the court, in the instance before us, has exceeded its legitimate power.

Our statutes virtually direct that alimony be litigated in the divorce suit. Code, chapter 64, sections 9 and 11. It is contemplated by our law that, during a suit for divorce and at the time a decree of divorce of any character is made therein, all questions of maintenance shall be settled. And as then settled they are final, except that adultery subsequently occurring is sufficient cause to cut off alimony. Cariens v. Cariens, 50 W. Va. 113. The statute provides for no future change as to the permanent alimony decree, or as to the silence of the decree in this regard. Yet the very section that deals with this subject of maintenance provides for future change as to the custody of children. "The expression of the one is the exclusion of the other." A change in the other particular is impliedly prohibited. Erkenbrach v. Erkenbrach, 96 N. Y. 456. "A decree of divorce a mensa et thoro allowing alimony to the wife is res judicata as to the alimony." Cariens v. Cariens, supra. And a decree of divorce a mensa et thoro which is silent as to alimony, likewise is a bar to alimony. It is a decree in a cause wherein the alimony was obtainable wherein that matter might have been and should have been litigated. "An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto, and coming within the ligitimate purview of the subject matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits." Rogers v. Rogers, 37 W. Va 407; and other cases. Mrs. Chapman was entitled to no alimony at the time the order was made. Her right to it was foreclosed by a former decree. That decree adjudged her guilty of desertion of the marital relation. It properly denied maintenance to her. A wife guilty of desertion is never entitled to alimony. The decree establishes the fact of her desertion. Until that decree is successfully assailed, she has no right to alimony. Bishop on Mar., Div. and Sep., section 861; Carr v. Carr, 22 Grat. 168; Harris v. Harris, 31 Grat. 13; Martin v. Martin, 33 W. Va. 695.

But the question which we must consider is not as to the right to alimony, but as to the power of a court to award it. In the independent suit to set aside the divorce decree for fraud, temporary alimony has been awarded the plaintiff therein merely as an incident to that suit. There is no warrant in the law for this action. Temporary alimony is incidental to a divorce suit. It is maintenance for the wife pending a suit which is to determine whether there is further duty upon the husband to maintain the wife. In our jurisprudence it is the creature of the statutes relating to...