Doeksen v. Doeksen

• Decision Date: 26 October 1926
• Docket Number: 37691
• Citation: 210 N.W. 545,202 Iowa 489
• Parties: DINA DOEKSEN, Appellee, v. RAYMOND DOEKSEN, Appellant
• Court: Iowa Supreme Court

210 N.W. 545

202 Iowa 489

DINA DOEKSEN, Appellee, v. RAYMOND DOEKSEN, Appellant

No. 37691

Supreme Court of Iowa, Des Moines

October 26, 1926

Appeal from Sioux District Court.--C. C. BRADLEY, Judge.

Appeal from award of alimony. The facts appear in the opinion.

Reversed.

Van Oosterhout & Kolyn, for appellant.

Anthony Te Paske, for appellee.

FAVILLE J. DE GRAFF, C. J., and STEVENS and VERMILION, JJ., concur.

OPINION

FAVILLE, J.

The parties to this action were married in 1921. In December of 1924, the appellee instituted an action for divorce in Sioux County, Iowa. At that time, the appellee was a resident of said county, and the appellant was a resident of the state of Michigan. The prayer of the petition was that the appellee be divorced from the appellant, that she be authorized by the court to resume her maiden name, and that "on final hearing she may be allowed the sum of $ 2,000 as permanent alimony, and that she may have judgment for said alimony." Original notice in said action was personally served upon the appellant in the state of Michigan. No appearance was entered by the defendant in said cause, and a decree of divorce was entered on default in January, 1925. By the terms of the decree, the appellee was awarded a divorce from the appellant, and was authorized to resume her maiden name, and said decree contains this provision: "This cause is continued on the question of alimony." Thereafter, the appellant was found in Sioux County, Iowa and a notice was served upon him personally in said county. Said notice referred to the original petition on file in said divorce action, and notified the appellant to appear and answer thereto as to the claim for alimony at a subsequent term of said court. At the August term, the appellant appeared, and by proper pleading challenged the jurisdiction of the court to enter any judgment in the nature of an award for alimony against him, and prayed that said application be dismissed. Proper objections were also made to the evidence and to all other steps in the proceedings, all of which objections were overruled. Evidence was introduced in behalf of the appellee, and a so-called supplemental decree was entered, awarding alimony to the appellee. It is from this supplemental decree that this appeal is prosecuted.

But one question is presented for our consideration in this case, and that is whether, under the stated facts, the court had jurisdiction to render a decree awarding alimony to the appellee. Where a decree is obtained on service of notice by publication, and there is no jurisdiction of the person of the defendant, and a decree of divorce is awarded without any reference to alimony, a subsequent proceeding, either as an independent action or by attempt to secure a modification of the decree as to alimony, cannot be maintained. We have recently had occasion to review this question and to make final pronouncement thereon in the case of McCoy v. McCoy, 191 Iowa 973, 183 N.W. 377. In that case, as in this, the court granting the divorce had no jurisdiction of the person of the defendant. He had no property in the state where the divorce was granted. The decree of divorce in that case, however, was entered without any provision therein for alimony. In said case we said:

"The argument for the plaintiff is that she could not obtain alimony in the Arkansas court for want of jurisdiction; that the question of alimony, therefore, is not adjudicated; that she is, therefore, entitled to adjudicate it wherever she can obtain jurisdiction of the defendant. The argument has its plausibility, and has the support of respectable authorities. There is much in it that appeals to the sense of equity; and, if it were res integra in this state, it might well command much consideration. On the other hand, the question is one which has been often considered by the courts of many states, and it must be said that the great weight of authority is against the contention of the plaintiff. In this state, the question is quite foreclosed by our previous decisions. The question was directly involved in our recent case of Spain v. Spain, 177 Iowa 249, 158 N.W. 529, wherein the question is quite fully discussed. We will not repeat the discussion now. The cited case is supported by the following of our previous cases: Blythe v. Blythe, 25 Iowa 266; Wilde v. Wilde, 36 Iowa 319; Marvin v. Marvin, 59 Iowa 699, 13 N.W. 851; Boyles v. Latham, 61 Iowa 174, 16 N.W. 68; Shaw v. Shaw, 92 Iowa 722, 61 N.W. 368. The general ground upon which these holdings are based was that alimony is an incident of the marriage relation; that it can only be allowed where the marriage relation exists; that it may be allowed as a part of the decree of divorce; that the severance of the marriage relation by absolute decree, without alimony, terminates the right to alimony."

The appellee contends that a different rule should prevail in the instant case because of the recital in the decree of divorce that: "This cause is continued on the question of alimony." The contention is that the court in the decree reversed the question with regard to alimony by the provision that "this cause is continued on the question of alimony."

A somewhat similar situation was presented in the McCoy case. In that case the decree contained...