Hutton v. Dodge

• Decision Date: 02 April 1921
• Docket Number: 3541
• Citation: 198 P. 165,58 Utah 228
• Court: Utah Supreme Court
• Parties: HUTTON v. DODGE

198 P. 165

58 Utah 228

HUTTON v. DODGE

No. 3541

Supreme Court of Utah

April 2, 1921

Rehearing Denied May 20, 1921.

Appeal from District Court, Second District, Weber County; A. E Pratt, Judge.

Action by Gertrude S. Hutton against Frank A. Dodge for alimony and other equitable relief after divorce decreed in another action. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

George Halverson, of Ogden, for appellant.

Stuart P. Dobbs, of Ogden, for respondent.

THURMAN J. CORFMAN, C. J., and WEBER and FRICK, JJ., concur. GIDEON, J., being disqualified, did not participate.

OPINION

THURMAN, J.

Plaintiff procured a divorce from defendant by a decree of the district court of Weber county August 12, 1919. In addition to the divorce, the decree also awarded certain personal property consisting of household furniture, liberty bonds, and war savings stamps which were at that time in plaintiff's possession. Service of summons was made by publication, the defendant being absent from the state. For that reason the court found as a conclusion of law that no alimony could be awarded to plaintiff, but that the decree should be subject to modification, as to alimony, at any time upon notice of motion by plaintiff served upon defendant within the state. It appears that motion was subsequently made by plaintiff in the same case for an allowance of alimony, and notice thereof served upon defendant within the state, as suggested in the decree. Defendant appeared specially and objected to the jurisdiction of the court. The objection was sustained.

This is an independent action on the part of plaintiff for alimony and other equitable relief.

In addition to the facts above stated, plaintiff alleges in her complaint that defendant is an able-bodied man employed in the railway service at an average salary of $ 175 per month; that plaintiff has no property or other means of support except household furniture, clothing, and about $ 400 in war saving stamps and liberty bonds; that she is not able to earn sufficient money to provide herself with the common necessaries of life; that $ 75 per month would be a reasonable sum for alimony; that during the married life of plaintiff and defendant debts were incurred which were not paid by defendant amounting to $ 440; that plaintiff has been able to pay about $ 400 of said indebtedness, leaving unpaid the sum of $ 40. Plaintiff prays for alimony and other relief.

The answer of defendant admits the allegations of the complaint, except those relating to the plaintiff's financial condition, the necessity for alimony, the reasonableness of the amount claimed, and the alleged indebtedness and plaintiff's payment thereof. As to these allegations defendant denies the same for want of information sufficient to form a belief. Further answering, the defendant alleges that the court has no power over, or jurisdiction to try or determine, any of the matters or things alleged in the complaint. The same answer, in substance, is made to each separate paragraph of the complaint.

At the trial of the case the defendant objected to the admission of any evidence on the part of plaintiff on the alleged ground that the court was without jurisdiction and that the complaint does not state facts sufficient to constitute a cause of action. The objection was overruled.

The court found the issues in favor of the plaintiff, and awarded her the sum of $ 50 per month as alimony until the further order of the court. Defendant appeals from the judgment and relies upon his assignment of error that the court was without jurisdiction to hear and determine the case.

There is but one question submitted for our determination: Did the trial court have jurisdiction to try the case and render judgment?

As heretofore stated, service of summons in the divorce proceedings was made by publication only. The defendant was absent from the state when service was made. In such case the court did not acquire jurisdiction of the person of the defendant and therefore was powerless to enter judgment in personam, or any judgment whatever, except as to the application for divorce and the disposal of such property as was within the state. This is elementary doctrine and is not controverted by respondent. The trial court, in recognition of the doctrine, did not attempt to exercise jurisdiction except as to the matter of divorce and property within the state. This it awarded to plaintiff and signified its opinion that she was entitled to alimony, but that the court was powerless to award it because the defendant had not been personally served with summons. The decree, however, expressly provided for modification in respect to alimony on motion of plaintiff whenever personal service of such motion with in the state could be made upon defendant. Such motion and service thereof was afterwards made as suggested in the decree. To this motion the defendant appeared specially and objected to the jurisdiction of the court. The objection was sustained.

It is manifest upon the most casual consideration of the question that if the court never acquired jurisdiction of the person of the defendant because personal service of summons was not made within the state, it could not afterwards acquire jurisdiction of the person of defendant by mere service of motion. In our judgment, the court could not have ruled otherwise than it did on the question of jurisdiction. The ruling, however, had the effect of turning the plaintiff out of court and left her without a remedy, unless she is entitled to bring an independent action. Whether or not she is so entitled is the crux of the controversy presented for our determination.

Appellant contends that the power of the court was exhausted when it awarded plaintiff a divorce and some property, and that the judgment of the court on the motion for alimony was likewise res adjudicata. Counsel for appellant cites the case of Karren v. Karren, 25 Utah 87, 69 P. 465, 60 L.R.A. 294, 95 Am. St. Rep. 815. In that case the husband had procured a decree of divorce from his wife and had been awarded the custody of the minor children. Subsequently the wife brought an independent action to set aside the decree and to award her alimony, attorney's fee, and custody of the children. The trial court refused to set aside the decree as far as the divorce was concerned, but granted her the custody of the children and also set aside the decree as regards alimony and a division of the property. Appellant's counsel quote the following from the opinion of the court at page 95 of 25 Utah and at page 467 of 69 P. (60 L.R.A. 294, 95 Am. St. Rep. 815):

"Section 1212, Revised Statutes, provides that subsequent changes may be made in a decree of divorce, by the court, in respect to the disposal of the children or the distribution of property. Such changes must be applied for, and can only be granted, in the action in which the decree of divorce was granted. We think it is clear, both from the allegations of the complaint and the findings of fact, that the plaintiff is not entitled to any relief in this action." (Italics ours.)

It appears from the italicized portion of the excerpt quoted that the relief, under the statute referred to, can only be obtained by a proceeding in the action in which the divorce was granted. Appellant relies upon this holding of the court as conclusive of the question presented here. Appellant's contention, first and last, develops a situation somewhat anomalous. It is insisted that respondent should be denied relief in the present action because, as held in the Karren Case, she can only obtain relief in the action in which the divorce was granted. She has already been denied relief in that action because the court had no power to grant it.

We can readily conceive that in some cases at least such contention as that made by appellant here, if sustained, might lead to palpable injustice. Let us assume, for instance, that in the present case plaintiff was not only entitled to a divorce and such property of defendant as was within the jurisdiction of the court, but to alimony as well. She could not follow her husband into another state and obtain relief for she would first have to establish a residence there before she could sue. She could not obtain a decree for alimony here because she could not make personal service of summons on defendant within this state. In such circumstances, what remedy would the plaintiff have? If there ever was a case in which litigation by piecemeal was justified because of the inherent difficulty of obtaining relief in one action, it seems to the writer that the case presented is almost a perfect example.

Karren v. Karren, supra, sheds no light whatever upon the question presented here. In that case personal service of summons in the divorce proceedings was made upon the defendant within the state. Complete jurisdiction was obtained for all purposes, and the court might well hold, as it did in that case, that relief as to alimony could only be obtained in the case in which the divorce was granted.

To the same effect as the Karren Case appellant cites Greene v. Greene, 2 Gray (Mass.) 361, 61 Am. Dec. 454, in which the syllabus, in a single paragraph states the doctrine:

"A decree of divorce from the bond of matrimony, although obtained by fraud and false testimony, cannot be set aside on an original libel, filed at a subsequent term. (Italics ours.)"

The opinion is by Chief Justice Shaw. At page 364 of the report (2 Gray , that distinguished jurist says:

"But we think the point here is settled by authority, not specifically in regard to divorce, but generally as to the conclusive effect of a judgment, in a case arising afterwards, on the same matter, between the same part...