Darby v. Darby

• Decision Date: 12 December 1925
• Citation: 277 S.W. 894,152 Tenn. 287
• Parties: DARBY v. DARBY.
• Court: Tennessee Supreme Court

277 S.W. 894

152 Tenn. 287

DARBY v. DARBY.

Supreme Court of Tennessee.

December 12, 1925

Appeal from Chancery Court, Shelby County; Israel H. Peres Chancellor.

Bill by Mary W. Darby against Henry W. Darby for divorce. Decree for complainant on constructive service. After defendant's return to the jurisdiction, complainant filed petition for alimony. Demurrer to petition was overruled, and defendant appeals. Reversed, and petition dismissed.

W. F Murrah, of Memphis, for complainant.

Wilson Gates & Armstrong, and Robert B. Goodwin, all of Memphis, for Henry W. Darby.

HALL J.

The bill in this cause was filed by complainant, Mrs. Mary W Darby, April 19, 1922, against her husband, Henry W. Darby, in the chancery court of Shelby county, seeking an absolute divorce and alimony from him upon three grounds:

(1) Habitual drunkenness contracted since their marriage, which occurred October 10, 1921, in Davidson county, Tenn.; (2) adultery: and (3) abandonment and failure to provide for her.

The bill alleged that the defendant was a nonresident of the state, and prayed that publication be made for him, which was done.

The defendant having failed to appear and make defense to the bill, an order pro confesso was taken against him, and the cause set for hearing ex parte as to him.

The cause coming on to be heard June 14, 1922, upon the bill, order pro confesso, and oral proof offered by the complainant, the chancellor granted to complainaint an absolute divorce, dissolving the bonds of matrimony subsisting between complainant and the defendant.

It was further ordered by the chancellor that the defendant pay the solicitor for complainant the sum of $100, the same being a reasonable fee for his services in said cause, and that he pay to complainant as alimony the sum of $200 per month, the "same being a reasonable portion of the earning capacity of the defendant," and the costs of the cause.

The decree made this further order:

"This cause will be retained in court for the enforcement of this decree whenever necessary, and either party has leave to apply."

On June 16, 1923, complainant filed a petition in said cause, alleging the rendition of said decree for divorce and alimony, and further alleged that the defendant had come within the jurisdiction of the court since the rendition of said decree; and the petition prayed that the defendant be ordered to pay her such an amount for her support and maintenance as should be determined by the chancellor to be just and reasonable.

The defendant was duly summoned to answer or make other defense to said petition, and he filed a demurrer thereto setting up three grounds of defense. The first and third grounds of the demurrer were sustained by the chancellor, but the second ground was overruled, and the defendant has appealed to this court. The substance of the second ground of the demurrer was that the petition did not state a cause of action, in that complainant was the divorced wife of the defendant at the time the petition was filed, and therefore had no claim against him for maintenance or support.

As before stated, the chancellor overruled this ground of the demurrer. He held, however, that the award for alimony in the divorce decree without personal service on the defendant, or without any property having been impounded, was a nullity, and that the same was true of that portion of the decree retaining the cause in court that said award for alimony might be enforced, but that the petition filed in the divorce suit should be treated as an original bill, and that the demurrer going to the jurisdiction of the court to entertain said petition for alimony as an original bill should be overruled, and decree was entered accordingly.

The defendant has filed two assignments of error in this court:

(1) "The court below erred in overruling defendant's second ground of demurrer, thereby holding that the complainant's petition could be treated as an original bill for alimony filed more than a year after the entry of the decree dissolving the bonds of matrimony.

(2) The court erred in allowing the petition to stand as an original bill instead of dismissing it as a form not permitted by the rules of equity pleading."

If we understand the position of counsel for complainant, it is conceded that the chancellor was without jurisdiction to award complainant alimony in the divorce suit; the defendant not being before the court by service of personal process, but only by constructive service, and no property of the defendant being impounded. However, whether this is conceded or not, it is nevertheless the law.

In 1 Ruling Case Law, § 24, p. 884, it is said:

"Owing to the fact that an action for divorce is in the nature of a proceeding in rem, under certain circumstances a court may render a valid decree of divorce although it never acquired actual jurisdiction of the person of the defendant. Such jurisdiction, however, though sufficient to support a decree changing the marital status, will not necessarily sustain a judgment for alimony and costs. A judgment for the latter cannot be supported on the ground that they are mere incidents of, and subordinate to, the right to a divorce; for a decree for the payment of money as alimony is essentially one in personam, and is therefore totally void in the absence of actual jurisdiction over the person or property of the one against whom it is awarded."

To the same effect is the holding of the court in Bunnell v. Bunnell (C. C.) 25 F. 214; De la Montanya v. De la Montanya, 112 Cal. 101, 44 P. 345, 32 L. R. A. 82, 53 Am. St. Rep. 165; Murray v. Murray, 115 Cal. 266, 47 P. 37, 37 L. R. A. 626, 56 Am. St. Rep. 97; Lytle v. Lytle, 48 Ind. 200; Sowders v. Edmunds, 76 Ind. 123; Baker v. Jewell, 114 La. 726, 38 So. 532; Larson v. Larson, 82 Miss. 116, 33 So. 717; Anderson v. Anderson, 55 Mo.App. 268; Dillon v. Starin, 44 Neb. 881, 63 N.W. 12; Hervey v. Hervey, 56 N. J. Eq. 166, 38 A. 767; Smith v. Smith, 74 Vt. 20, 51 A. 1060, 93 Am. St. Rep. 882; Elmendorf v. Elmendorf, 58 N. J. Eq. 113, 44 A. 164; Fleming v. West, 98 Ga. 778, 27 S.E. 157.

The chancellor treated the petition filed June 16, 1923, as an original bill for alimony, though he held that the previous decree as to alimony was a nullity and could not be enforced.

This holding amounted to nothing more or less than a holding that a complainant in a divorce suit can secure an absolute divorce without alimony, and thereafter sue her divorced husband for alimony in an independent action, or by a petition in the nature of an original bill filed in the same action, after the entry of the decree dissolving the bonds of matrimony.

It is contended by the defendant that it was the duty of complainant, if she desired alimony from him, to sue him for divorce at a place and in a court where she could get such relief; but having selected to sue him in this state, which was not the state of his residence, as alleged by her in her bill for divorce, and in which court she could not have a valid decree for alimony because the defendant was only before the court by constructive service, though she could have and was decreed a valid divorce from her husband, she cannot now, in an independent action, recover of him alimony.

We are of the opinion that the chancellor committed error in overruling the defendant's second ground of demurrer to complainant's petition, and in holding that said petition may be treated in the nature of an original bill for alimony. We think the original bill for divorce must be treated as a bill for divorce only. In other words, in view of the fact that the defendant was only before the court by constructive service, and no property belonging to the defendant having been impounded, the bill stood as if no alimony had been prayed for.

In Cameron v. Cameron, 31 S.D. 335, 140 N.W. 700, Ann. Cas. 1915D, 1062, it was held that where no alimony was sought or obtained when a divorce was awarded the wife the judgment is conclusive on the subject of alimony and allowances, for, as none was ordered in the judgment, the court cannot subsequently order an allowance under Civil Code, section 92, providing that, where a divorce is granted for the offense of the husband, the court may allow alimony, and may, from time to time, modify its orders in these respects.

To the same effect is the holding of the court in Downey v. Downey, 98 Ala. 373, 13 So. 412, 21 L. R. A. 677; Bowman v. Worthington, 24 Ark. 522; Howell v. Howell, 104 Cal. 45, 37 P. 770, 43 Am. St. Rep. 70; O'Brien v. O'Brien, 124 Cal. 422, 57 P. 225; O'Brien v. O'Brien, 130 Cal. 409, 62 P. 598; Hall v. Hall, 141 Ga. 361, 80 S.E. 992; Blythe v. Blythe, 25 Iowa, 266; Wilde v. Wilde, 36 Iowa, 319; Campbell v. Campbell, 115 Ky. 656, 74 S.W. 670; Moross v. Moross, 129 Mich. 27, 87 N.W. 1035; Kamp v. Kamp,

59 N.Y. 212; Weidman v. Weidman, 57 Ohio St. 101, 48 N.E. 506; McFarlane v. McFarlane, 43 Or. 477, 73 P. 203, 75 P. 139; Ambrose v. Moore, 46 Wash. 463, 90 P. 588, 11 L. R. A. (N. S.) 103; Metler v. Metler, 32 Wash. 494, 73 P. 535; McCoy v. McCoy, 191 Iowa, 973, 183 N.W. 377; Spain v. Spain, 177 Iowa, 249, 158 N.W. 529, L. R. A. 1917D, 319, Ann. Cas. 1918E, 1225; Eldred v. Eldred, 62 Neb. 613, 87 N.W. 340.

In Eldred v. Eldred, supra, plaintiff and defendant were married in Iowa in 1880, where they resided for about 3 years and then moved to Saline county, Neb., where they made their home for several years. Finally they moved to Mercer county, Ill where they purchased residence property, which, for a time, they made their home. Finally defendant returned to Nebraska, leaving his wife and children behind, and in June, 1896, the plaintiff, Mrs. Eldred, applied to the circuit court of Mercer county, Ill., for a divorce...