McFarland v. McFarland

• Decision Date: 17 September 1879
• Citation: 2 N.W. 269,51 Iowa 565
• Parties: DELL MCFARLAND, APPELLEE, v. JOHN A. MCFARLAND, APPELLANT.
• Court: Iowa Supreme Court

51 Iowa 565

2 N.W. 269

DELL MCFARLAND, APPELLEE,

v.JOHN A. MCFARLAND, APPELLANT.

Supreme Court of Iowa.

Filed September 17, 1879.

Appeal from Polk circuit court.

There were two actions commenced by the plaintiff against the defendant. The said actions were consolidated, and from an order or decree made after the consolidation this appeal was taken. The petition in the first action set forth that the parties were married in 1860, and lived together as husband and wife until the month of May, 1870, when defendant “discarded” the plaintiff, and by reason of wrongs done her she was compelled to leave him, and that she remained absent about one year, when at his request she returned and again lived with him as his wife; that he then promised to treat her as such in every respect, and for a time kept such promise, and held her out to the world as his wife; that they entered anew into their former marital relations, and commenced to live and cohabit as husband and wife, the same as before said separation, and so continued until the month of May, 1877, when defendant with force and violence compelled plaintiff to leave “their household,” and refused to allow her anything for her support, she being unable to support herself. The relief asked was that she be allowed a reasonable sum for her support, and also for attorney's fee for prosecuting the action. The answer to this action admitted the alleged marriage, but denied the other allegations of the petition, and pleaded in bar of the action a decree of divorce between the parties, which was obtained in this state in the month of May, 1870. It was also alleged in the answer that the plaintiff pretends to have some claim against the defendant or his property, and it is prayed in the “answer in the nature of a cross-bill that she be restrained from asserting any claim against him or his property.” There was a reply to the answer admitting that “there is a pretended decree of divorce,” as stated in the answer, which is entirely void, upon certain grounds which will appear in the opinion. The object of the second action is to have “cancelled and set aside and held for naught” the said decree of divorce. The answer to this petition denies the material allegations thereof, and by way of cross-petition prays that defendant be granted a decree of divorce. There was a replication denying the allegations of the answer and cross-petition, and thereupon the two actions were consolidated. Afterwards the plaintiff filed a motion praying the court to make an order directing the defendant to pay her, as temporary alimony, a certain sum of money for her support, pending the suit, and a further sum to pay her attorneys for their services in prosecuting the action. This motion was resisted by the defendant, and upon the hearing thereof a large number of affidavits and counter-affidavits were submitted to the court. The motion was sustained, and the order made. From this order the defendant appeals.M. K. Ramsey and Wright, Gatch & Wright, for appellant

Ritchey & Green and Phillips, Goode & Phillips, for appellee.

ROTHROCK, J.

1. Alimony, either temporary or permanent, is based upon the existence of the marital relation. Unless such relation exists it cannot be legally claimed nor allowed. The only inquiry, therefore, is, were these parties at the time the action was commenced husband and wife? That there was a decree of divorce entered by a court of competent jurisdiction in the month of May, 1870, is not denied; but it is insisted said decree is void because the court had no jurisdiction of the plaintiff in this action, and for fraud in obtaining the decree, and for the reason that the cause was heard and determined at chambers and not in open court. In support of the last proposition Hobart v. Hobart, June Term, 1879,¹ is cited as authority. That case, however, has no application to the case at bar, because it is based wholly upon a statute which was not in force when the decree in this case was found and entered. Without referring to the evidence, or entering upon a discussion thereof, it is sufficient to say that the decree of divorce is not void. The most that can be claimed against it is, that it may be voidable. This question, however, we do not determine. It is sufficient for the purposes of this investigation to say that the decree is not void. The action of the plaintiff must, therefore, be held to be a proceeding to set aside a voidable decree of divorce.

In Wilson v. Wilson, December Term, 1878, which was an action brought by a divorced wife to set aside the decree because the court did not have jurisdiction, and for fraud perpetrated by the husband in obtaining it, we held that temporary alimony to enable the plaintiff to prosecute the action, and for her support, could not be allowed, and the order of the court below granting such relief was reversed. It is there said that alimony “is a right which results from the marital relation, and the fact of marriage between the parties must be determined or proved before there can be a decree granting it.” That case is directly in point, and following it we are required to hold that the court below erred in making the order for temporary alimony, if the order was based upon the action which sought to set aside the decree of divorce. The case of Whetstone v. Whetstone, 31 Iowa, 216, is clearly distinguishable from the case at bar. In that action the defendant pleaded a decree of divorce in bar of the divorce prayed by the plaintiff. There was a replication setting up facts which showed the decree to be void. To this there was a demurrer. The legal effect of the demurrer was to admit of record that the divorce was void. The marriage relation still existed, and the plaintiff was seeking a divorce, and the defendant was ordered to pay to plaintiff a sum of money to enable her to prosecute the action. Here the plaintiff is not seeking a divorce, but asks that the obligations resulting from the marital relation shall be enforced. Besides this, it is not admitted of record that the decree of divorce is void, nor can we so hold from the pleadings contained in the record. In Groves v. Groves, 36 Iowa, 310, no temporary alimony was allowed. That case, therefore, is not applicable to the question here presented. The point determined in Wilson v....