Cotter v. Cotter

• Decision Date: 09 August 1915
• Docket Number: 2532.
• Citation: 225 F. 471
• Parties: COTTER v. COTTER.
• Court: U.S. Court of Appeals — Ninth Circuit

225 F. 471

COTTER v. COTTER.

No. 2532.

United States Court of Appeals, Ninth Circuit.

August 9, 1915

This is an action instituted in the District Court for the Territory of Alaska, Third Division, based upon a decree for alimony rendered in the superior court of the state of Washington for King county. Among the allegations in the complaint are the following: 'That said decree further provided and ordered that the defendant pay to the plaintiff, as permanent alimony, the sum of $50 per month, the same to be paid on the 1st day of each and every month from the date of the entry of said decree. That said decree further provided that the defendant should pay certain outstanding indebtedness incurred by the plaintiff in the sum of $750. That no part of same has been paid except the sum of $120, and there is now due and owing from the defendant to the plaintiff the sum of $630, together with interest thereon at the rate of 8 per cent. (8%) per annum from date until paid. That the defendant has not paid said alimony or any part thereof, and there is now due and owing on account of the same, from the defendant to the plaintiff, the full sum of $650, together with interest thereon at the rate of 8 per cent. per annum from date until paid. * * * That said superior court for King county, in the state of Washington, is duly empowered and authorized under the laws of said state to grant permanent alimony, as provided by said decree, a copy of the statutes of the state of Washington relative thereto being as follows and hereby made a part of this complaint: 'In granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable having regard to the respective merits of the parties, and to the condition in which they will be left by such divorce, and to the party though whom the property was acquired, and to the burdens imposed upon it for the benefit of the children, and shall make provision for the guardianship, custody, and support and education of the minor children of such marriage.' ' The prayer is for $1,280, and interest thereon at 8 per cent.; that defendant be required to pay a reasonable sum into court to defray the expenses of the action and for counsel fees, and for further relief. A demurrer was interposed to the complaint, assigning as reasons therefor that the court has no jurisdiction of the subject-matter that the plaintiff has no legal capacity to sue, and that the complaint does not state facts sufficient to constitute a cause of action. This was sustained, and, the cause having been dismissed, plaintiff prosecutes error.

John Lyons and E. E. Ritchie, both of Valdez, Alaska, and Thomas R. Lyons and Ira D. Orton, both of Seattle, Wash., for plaintiff in error.

S. O. Morford, of Seward, Alaska, for defendant in error.

WOLVERTON District Judge (after stating the facts as above).

In support of the demurrer, the defendant in error insists that the complaint is defective in that it does not show that the superior courts of the state of Washington have jurisdiction to grant divorces.

Formerly in England the ecclesiastical courts possessed exclusive jurisdiction over matrimonial causes, and such was the case at the time of the adoption of the American Constitution. Ecclesiastical courts have not been established in this country, and when it is said that the colonies and the states of the Union adopted the common law of England, it is not true that they adopted the ecclesiastical law pertaining to marriage and divorce, or the power incidental thereto of granting divorces in any form. Hence it is affirmed on authority that, in the absence of constitutional provision or express legislation, no American tribunal has jurisdiction to grant a divorce. 14 Cyc.

581 582; 9 Am. & Eng. Enc. of Law (2d Ed.) 739. But we think it will not be gainsaid that the jurisdiction to grant divorces is so generally conferred upon the courts of general jurisdiction in this country that it is the exception and not the rule that such courts are without jurisdiction pertaining to such causes, and it would seem that the allegation that the Washington court is a court of general jurisdiction is sufficient to sustain the action. If this position be questioned, the ninth paragraph of the complaint does allege that the Washington court was empowered, under the laws of the state, to grant permanent alimony, citing the clause of the statute relied upon. Under this clause, as we shall presently see, the court did possess the authority to grant the alimony now sought...