Van Horn v. Van Horn

• Decision Date: 05 February 1908
• Citation: 93 P. 670,48 Wash. 388
• Court: Washington Supreme Court
• Parties: VAN HORN v. VAN HORN.

93 P. 670

48 Wash. 388

VAN HORN v. VAN HORN.

Supreme Court of Washington

February 5, 1908

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by Marion V. Van Horn against Ross H. Van Horn on an interlocutory order of a foreign court awarding temporary alimony and suit money. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

William B. Allison, for appellant.

Bamford A. Robb, for respondent.

RUDKIN J.

This action was instituted in the court below on an interlocutory order of the superior court of Alameda county in the state of California awarding temporary alimony and suit money to the plaintiff herein in an action for divorce pending in that court. A demurrer interposed to the amended complaint was sustained, and the plaintiff electing to stand on her complaint, and, refusing to plead further, a judgment of dismissal was entered. From that judgment the present appeal is prosecuted.

The order on which the action is based was made under section 137 of the Civil Code of California, which reads as follows 'When an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony, any money necessary to enable the wife to support herself and her children, or prosecute or defend the action.' The authorities very generally agree that an action will not lie in another court or in the courts of another state on an order or judgment such as this. Baugh v. Baugh, 4 Bibb. (Ky.) 556; Ledyad v. Brown, 39 Tex. 402; Vine v. Vine, 21 R.I. 190, 42 A. 871; Cuttler v Cuttler, 88 Ill.App. 464; Webb v. Buckelew, 82 N.Y. 555; Lynde v. Lynde, 162 N.Y. 405, 56 N.E. 979 48 L. R. A. 679, 76 Am. St. Rep. 332, same case affirmed 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810; Freud v. Freud (N J. Ch.) 63 A. 756; Israel v. Israel, 148 F. 576, 79 C. C. A. 32, 9 L. R. A. (N. S.) 1168; Hunt v. Monroe (Utah) 91 P. 269; Sistare v. Sistare (Conn.) 66 A. 772; Geisler v. Geisler, 98 S.W. 1023, 30 Ky. Law Rep. 430; Barclay v. Barclay, 184 Ill. 375, 56 N.E. 636, 51 L. R. A. 351. The reason for the rule is thus stated in Israel v. Israel, supra: 'The decree for alimony may be changed from time to time by the chancellor, and there may be such circumstances as would authorize the chancellor to even change the amount to be paid by the husband, where he is in arrears in payments required under the decree. * * * The peculiar character of the obligation is such that it is always subject to modification by the court in which the decree was entered according to the varying circumstances of the parties, and no other court could undertake to administer the relief to which the parties are entitled except that having jurisdiction in the original suit. An attempt to do so by such other court would bring about a conflict of authority and a condition of chaos with reference to questions of this character, because no other court would have before it the facts with reference to such change and condition and as to such original right of the parties.' Without questioning the rule announced in these cases, counsel for the appellant earnestly insists that the order in question is a final one under the decisions of the Supreme Court of the state of California, and must be so considered here. In support of this contention he cites: Sharon v. Sharon, 67 Cal. 185, 7 P. 456, 635, 8 P....