Davis v. Davis

• Decision Date: 18 March 1941
• Docket Number: 2170
• Citation: 111 P.2d 124,56 Wyo. 524
• Parties: DAVIS v. DAVIS
• Court: Wyoming Supreme Court

111 P.2d 124

56 Wyo. 524

DAVIS v. DAVIS

No. 2170

Supreme Court of Wyoming

March 18, 1941

APPEAL from the District Court, Sweetwater County; V. J. TIDBALL Judge.

Suit for divorce by John Davis against Dolores Davis. From a judgment for the defendant, plaintiff appeals. The defendant filed a motion in the Supreme Court for attorney's fees.

Affirmed.

For the plaintiff and appellant, there were briefs by T. S Taliaferro, Jr. and A. L. Taliaferro of Rock Springs, and oral argument by A. L. Taliaferro.

The order given and made for separate maintenance in the case of Dolores Davis v. John Davis, on April 29, 1939, is not a judgment upon which execution could issue and is not a final order. It may be vacated at any time. It is not res judicata in this suit. There is no statute in Wyoming upon which a limited divorce can be based. Urbach v. Urbach (Wyo.) 73 P.2d 961. No question of desertion was adjudicated by the order of the court below on April 29 1939. It was therefore not a bar to defendant's divorce action based upon grounds of desertion. The trial court erroneously held that plaintiff's action for divorce, on the grounds of desertion could not be maintained in view of the fact that appellant had not interposed a defense of desertion in the action brought by defendant for seperate maintenance. It is appellant's contention that the decision in Malouf v. Malouf, 90 P.2d 277 is not in point, nor is the case of Brown v. Brown, 23 Wyo. 11, for the reason that the separate maintenance statute does not require a wife to be separated from her husband in order to secure relief under that statute, which seems to differ from statutes of other states on the subject of separate maintenance. Weld v. Weld (Minn.) 7 N.W. 267; Slavinsky v. Slavinsky (Mass.) 190 N.E. 826. Under the Massachusetts statute, a wife cannot receive separate support while living separate and apart from her husband, except upon proof of maltreatment on the part of her husband. It is clear that the difference in the provisions of the Wyoming statute from statutes of other states on the subject of separate maintenance may have led to some confusion as to the effect of an order for separate maintenance rendered under the Wyoming statute. We direct the court's attention to Taylor v. Taylor (N. H.) 57 A. 654; Harding v. Harding, 198 U.S. 317; Miller v. Miller (Mass.) 22 N.E. 765; Reibesehl v. Reibesehl (N. J.) 149 A. 823; Rylee v. Rylee (Miss.) 108 So. 161; Kenley v. Kenley (Miss.) 2 How. 751. The Supreme Court of Washington has held that a decree for separate maintenance was not res judicata to subsequent proceedings for divorce. Loeper v. Loeper (Wash.) 142 P. 1138; Appleton v. Appleton (Wash.) 166 P. 61. The findings of fact exhibited by the judgment of April 29, 1931 are that defendant should receive $ 50.00 support money while living separately and apart from her husband, and that she should receive $ 100.00 in addition to what had already been paid her for attorney's fees. The judgment or order is, in terms, one that might have been rendered under the statute, if plaintiff and defendant were living together. There is no authority or law for rendering an order of limited divorce. 19 C. J. 158. The Supreme Court of New Mexico has held that under their statute authorizing legal separation, there was no authority to award an absolute divorce or to refuse the same. Hodges v. Hodges (N. M.) 159 P. 1009. An order requiring a husband to support his wife, whether living together or living separately, has no relation whatsoever to a suit brought by a husband for divorce, since the statute does not authorize a limited divorce. There is nothing in the pleadings in this case upon which a court can find that there has been a former adjudication.

For the plaintiff and respondent, there was a brief and oral argument by Alfred M. Pence of Laramie.

While it may be true that statutes in other states relating to separate maintenance proceedings are not identical with Section 35-121, R. S., yet we have not discovered a material difference. Counsel for appellant has made a vigorous effort to discredit the authorities cited by this court in its decision of Malouf v. Malouf. If in the proceedings had for separate maintenance brought by Dolores Davis, it had appeared that the abandonment of her home was not justified, she would undoubtedly have been denied relief and her absence from her husband's home for one year would have constittued grounds for an action by her husband for desertion. The courts take judicial notice of a record in another suit in the same court, where the judgment rendered therein is set up as estoppel or in bar of recovery. Arnold v. Hilts, 165 P. 316; 23 C. J. 114, Note 47; 23 C. J. 61; see also 39, 40, 41 and 42 on page 61 of Volume 23 C. J. The judgment of the trial court is supported by Appleton v. Appleton (Wash.) 166 P. 61; In re Bell's Estate (Calif.) 95 P. 372; Helping v. Helping, 195 P. 715; Vickers v. Vickers (Nev.) 199 P. 76; Harding v. Harding, 198 U.S. 317; Kelly v. Kelly (Va.) 87 S.E. 567; Sherman v. Sherman (Calif.) 253 P. 945; Greer v. Greer (Calif.) 77 P. 1106; Merriam v. Merriam, 207 Ill.App. 474; Willardson v. Willardson (Utah) 172 P. 719; Anderson v. Anderson (Utah) 181 P. 168; Skittletharpe v. Skittletharpe (N. C.) 40 N.E. 851; Crews v. Crews, 95 S.E. 149; Short v. Short, 265 Ill.App. 133; Ex parte Sedillo, 278 P. 202. We believe the decision of this court in Malouf v. Malouf, supra, is clearly decisive of this case and we submit that the court did not err in its holding, which should be sustained.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

In this case the district court of Sweetwater County granted a judgment on the pleadings in favor of the defendant, Dolores Davis, upon the latter's motion to that effect, and the plaintiff, John Davis, has brought the record here by direct appeal for review. The parties will be usually mentioned as aligned in the trial court.

On August 30, 1939, the plaintiff filed his petition in the court aforesaid, charging in Paragraph 2 that "on or about the 24th day of August, 1938, the defendant wilfully deserted the plaintiff, and has ever since, though constantly requested so to do, failed and refused to return to the plaintiff, and to the plaintiff's home, and resume their marriage relations". The petition also set forth the date of the marriage of the parties; that plaintiff was not guilty of the "same misconduct" as he therein charged against the defendant; that there was no collusion between the parties; and that there were no children of the marriage. Plaintiff prayed that a divorce be granted him against the defendant. To this petition the defendant, on November 7, 1939, filed her answer, wherein she admitted the other allegations of the petition mentioned above, but denied those contained in Paragraph 2 just quoted, and in connection therewith she alleged "that the defendant and the plaintiff have lived separately since August 24, 1938; that on the 6th day of September, 1938, defendant began an action in the District Court of Sweetwater County, praying for a decree of separate maintenance; that thereafter on the 29th day of April, 1939, judgment was entered in said action, a full, true and correct copy of which is attached hereto, marked Exhibit 'A' and by this reference made a part hereof as fully as though the same were extended herein; that the defendant is and has been since April 29, 1939, living separate and apart from the plaintiff under the decree of separate maintenance as set forth in Exhibit 'A' attached hereto". It was additionally alleged in said answer, supplementing the above quoted allegations therefrom, that "plaintiff's conduct during the period of their cohabitation was such that it was impossible for the defendant to live with him".

"Exhibit A", pleaded by defendant's answer, purports to be a copy of a judgment of the district court of Sweetwater County, dated April 29, 1939, in a litigated matter arising between the same parties as here concerned in the present action. After reciting the personal appearances of the several parties and their counsel, with their respective witnesses, and that the court "having heard the evidence and being advised, finds for the plaintiff, and that, while living separate and apart from the defendant, she should receive" from the defendant, John Davis, certain specified amounts as "support money" and attorney's fees, judgment was entered accordingly that she recover from John Davis said moneys "as separate maintenance while said parties are living separate and apart, and until the further order of this court".

Replying to defendant's answer, plaintiff admits the averment of the defendant's answer "that the defendant and the plaintiff have lived separately since August 24, 1938" and that the aforesaid "Exhibit A" is a copy of the decree of the Sweetwater district court "in the case in which the same is entitled, as shown by said copy". The other allegations of defendant's answer are met with denials.

Upon this state of the pleadings the defendant moved that judgment be given in her favor because "the plaintiff in his reply to the defendant's answer admits that Exhibit 'A' attached to the defendant's answer is a copy of the decree of this court in the case in which the same is entitled, and that by so admitting plaintiff acknowledges a judicial separation of the parties to this action which nullifies the allegation of a willful desertion on the part of the defendant dating from the 24th of August 1938".

The statutes of this State involved in this controversy are respectively Section 35-108 W. R. S., 1931, which in that part now pertinent reads:

"A divorce from the bonds of matrimony may be decreed by the...