Cook v. Cook

Lead Opinion

Cassoday, J".

It is urged by the learned counsel for the defendant that the Michigan divorce is a complete bar to this action for any and all purposes. The question is important, and we are not aware that it has ever received the consideration of this court. Certain questions have, however, been determined, which may be indirectly involved in the proposition. It has frequently been held that courts in this country possess no power in actions for divorce, except such as are conferred by statute. Barker v. Dayton, 28 Wis., 367; Hopkins v. Hopkins, 39 Wis., 167; Bacon v. Bacon, 43 Wis., 197. Under our statute several questions havqJoeen determined by this court.

/WÍ_vL Damon v. Damon, 28 Wis., 514, it was held that a claim for alimony is not the subject matter of a separate suit, but is only ancillary to, or an incident of, an action for a divorce. In that case both parties were residents of Wis consin.

In Campbell v. Campbell, 37 Wis., 206, both parties resided in this state at the time the judgment of divorce a vmculo was rendered. Several years after the judgment each party presented petitions respecting the alimony adjudged. It was held, in effect, that the court had continuing authority, after the divorce, to make changes as to the alimony allowed, and the custody of the children decreed, depending largely on the need, age, and other circumstances of the wife and children, and the ability of the husband. The late chief justice there said: “ And for somewhat similar reasons, these questions of alimony and custody of children may, in the first instance, be included in the judgment of divorce, or in a subsequent and separate judgment.” Similar ground was taken in Hopkins v. Hopkins, 40 Wis., 462, where it was held that a judgment for partition or division of the real and personal property of the husband between the parties to a divorce suit is final; but a judgment for alimony, whether payable annually or in a gross sum, may be revised by the court from time to time on the petition of either party. These positions are enforced in Bacon v. Bacon, 43 Wis., 197.

This court has held, under our statutes, that a resident plaintiff may maintain an action for divorce in the courts of this state, notwithstanding the marriage was. solemnized abroad, and the cause for divorce occurred in another state, and the defendant has never been a resident of this state, nor served with process therein. Manley v. Manley, 3 Pin., 390; Hubbell v. Hubbell, 3 Wis., 662; Gleason v. Gleason, 4 Wis., 64.

In Dutcher v. Dutcher, 39 Wis., 651, it was held that a nonresident plaintiff could not maintain an action for divorce in the courts of this state; and this is the rule even when the marriage has been solemnized in this state, and the cause for the divorce occurred here. In that case the late chief justice took occasion to say: “ Wisely or unwisely, it is the policy of the statute to rest jurisdiction of divorce here upon the residence of the plaintiff alone.” Page 657. “ Doubtless, for certain purposes, the domicile of the husband is the domicile of the wife. That rule, however, goes upon the unity of husband and wife; and very generally, if not always, implies continuing, though temporarily interrupted, cohabitation. It excludes, or should exclude, permanent separation. Permanent separation implies separate domiciles of husband and wife. If the rule^were to be applied to cases of desertion, it would imply something like an absurdity. The weight of authority is against the application of the rule as applied to cases of divorce when the parties are actually living in different jurisdictions. . . . The question cannot be considered an open one in this court.” Page 659. The case, as well as the statute, excepted actions “for adultery alleged to have been committed while the plaintiff was a resident of this state.” Sеc. 2359, E. S. By the late revision, a wife, whose husband has deserted her in another jurisdiction and become a resident of this state, is enabled to follow him into the courts of this state, even though she is not a resident. Sec. 2359, E. S. But that is immaterial here, since it is the husband, and not' the wife, who is the nonresident. The Michigan statute, like ours, provided that “ no divorce shall be granted unless the party exhibiting the petition or bill of complaint therefor shall have resided in this [that] state one year immediately preceding the time of exhibiting such petition or bill.” Sec. 9, ch. 170, Comp. Laws, 1871.

From these decisions and this statute it is clearly established that the courts of Wisconsin had no jurisdiction to grant a divorce at the suit of William while he was a resident of Michigan; and the courts of Michigan had no jurisdiction to grant a divorce at the suit of EUen while she was a resident of Wisconsin. And yet all the while the courts of each had jurisdiction to grant a divorce at the suit of the one residing in such jurisdiction. This restricting, or rather determining, each jurisdiction by its own citizenship suggests the query: Suppose each had commenced an action for divorce on the ground of desertion at the same moment of time, he in a court of Michigan and she in a court of Wisconsin, and each had obtained service by publication in the same way, and each prosecuted such suit to judgment at the same moment of time, which would have the most binding force as to the status of the rеspective parties, and the property purporting to be affected by it? Would both be void, or both be valid? Or would one be valid and the other void? and if so, which would be valid and which void? and upon what ground would the distinction rest? Was -Ellen's only remedy to appear as defendant in a case of which she had no knowledge, in a court which could not take jurisdiction if she appeared as plaintiff, and which could, in no event, give title to the land which she here seeks to have adjudicated ?

These questions go to the very vitals of the proposition under discussion. In their determination it is necessary to consider the purpose, object, and policy of the statutes, and the effect and inсidents of a divorce. In Campbell v. Campbell, supra, it was aptly said ■ “ that the jurisdiction of divorce is a peculiar jurisdiction, because the marriage relation is a peculiar relation;” and in Dutcher v. Dutcher, supra, it was added “ that the statute of divorce is a peculiar statute.” In the latter case the late chief justice said: “The policy of the statute in requiring a year’s residence is obviously to secure good faith ‍​​​​​‌​‌‌‌‌‌‌​​‌‌​‌‌‌​​​‌​​‌​​‌‌‌‌​‌‌​‌‌​‌​​‌‌​‌‍in the residence of parties coming from without the state and applying for divorce here. . . . No mere pretense of residence, no passing visit, no temporary presence, no assumption of residence here pro hae mee, nothing short of actual abode here with intention of permanent residencе, will fill the letter or spirit of the statute. . . . The legislature was legislating for the citizens of this state, not for others.”

In Smith v. Smith, 13 Gray, 210, Shaw, O. J., in pronouncing a foreign divorce, set up by way of defense, void, said: “-If this were a mere private action or suit in which the personal rights of the parties alone were concerned, there would be strong reason for applying the doctrine of estoppel to the act of the husband in resisting the present motion of the wife. But a suit for divorce is of a very different character; it is one in which the public have an interest, and in the conduct and result of which the best interests of society are concerned. . . . Marriage is undoubtedly a contract, but' it is a contract sanctionеd by law, controlled by considerations of public policy vital to the order and harmony of social life, and in it’s nature indissoluble, except by violations of duty on the one part, to be taken advantage of in a special manner, provided by law, on the other. Neither party can do any act by way of release, grant, stipulation, or agreement, to dissolve such contract; and yet by any of these acts one could estop himself in a matter of private right.”

Marriage is not only a contract, but, when consummated, creates the most peculiar and solemn of all domestic relations. It comes into existence in pursuance of a contract, but when formed it invоlves rights and duties flowing from a source transcendently above any and all contracts which the parties are capable of making. It is akin to the tender relation between parent and child, and has a peculiar sanctity not to be expressed in any commercial phraseology like the word “ contract.” Its obligations can be enforced, and its violations redressed, in ways unknown to the law of contracts. It.is shielded from unholy intrusion by severe penalties, enacted in laws both human and divine. It unites two persons for life by giving to each a new status before the law, as to society, each other, and the property of each. This status not only involves the well-being of the parties thus unitеd, but the good of society and the state. It is, therefore, a proper subject of legislation. It mayj from public considerations, be fixed, regulated, and controlled by law. In this country it is not a matter of national, but state legislation. But, as already observed, this court has held that the legislation of this state is for the citizens of this state, and not for the citizens of other states. Undoubtedly each state has the power to absolutely fix, regulate and control such status as to each and all of its own citizens. Of course, every other state has the same power. Prom this it logically follows that no one state has the power to fix, regulate, or control such status as to the citizens of any other state. It is true, when such status is once rightfully fixed by a state in which the person to whom it attaches resides, it necessarily follows the person, even though he goes into another state, and it continues with him until refixed by another rightful jurisdiction in which he has subsequently become a resident. The old theory was that in law the husband and wife were but one person, and that the husband was that one. But that theory, like many others, has been compelled to yield to the actual facts. Though united in wedlock, yet, nevertheless, the union is of two different persons, each having independent volition and individuality. As already observed, this court has held that while for certain purposes the domicile of the ■ husband is the domicile of the wife, yet in case of permanent separation “ the weight of authority is against the application of the rule, as applied to cases of divorce, when the parties are actually living in different jurisdictions.”

Thus, in Shafer v. Bushnell, 24 Wis., 372, the husband and wife lived together for some years in Wisconsin, when the wife went to Minnesota, and after remaining there a year she commenced’ an action for and obtained a divorce in a court of that state. She then married Bushnell and returned to Wisconsin. The former husband thereupon prosecuted Bushnell for alleged criminal intercourse with his wife. In that case the present chief justice, giving the opinion of the court, among other things, said: “ It appears to us that the decrеe of the district court of Minnesota, dissolving the marriage between Mrs. Shafer and her husband, must be deemed conclusive in this state in respect to the status or domestic and social condition of the wife. . . . According to the principles of our own decisions, therefore, effect must be given to the judgment of the Minnesota court, although the plaintiff had only constructive notice by publication of the divorce suit.” That case necessarily determined that the wife might of her own volition leave the husband in Wisconsin and go to and become a citizen of Minnesota, and then, under the laws of that state made for, and fixing, regulating, and controlling the status of, its citizens, and through the aid of its courts, be so far reliеved from the status which her former marriage had fixed upon her as to enable her to marry again without criminality to herself or the man with whom such marriage was contracted.

Applying that decision to the case before us, and assuming that the Michigan divorce is valid, and not a fraud upon the laws of this state nor the plaintiff, and it would follow that under the laws of Michigan fixing, regulating, and controlling the status of its own citizens, of whom William had become one, he has been relieved by a court of that state of his former status of marriage, so far as to enable him to remarry without criminality in himself or the woman with whom the marriage might be contracted. But the question would still remain: What about the status of ElUn, who never was a resident or citizen of Michigan, but has all the while been a resident of Wisconsin, ‍​​​​​‌​‌‌‌‌‌‌​​‌‌​‌‌‌​​​‌​​‌​​‌‌‌‌​‌‌​‌‌​‌​​‌‌​‌‍which also has the right, and is in duty bound, to fix, regulate, and control the status of its own citizens % Has the jurisdiction in which William and Ellen both resided for many years as husband and wife, and in which Ellen still resides, lost alt power of determining her marriage status, and her rights of property by reason of such status, merely because William has abandoned her and departed from the jurisdiction and entered another, the aid of which he successfully invoked in obtaining a secret divorce ?

The supreme court of Michigan in Wright v. Wright, 24 Mich., 181, has answered the question in this language: “We do not by any means concede, however, that if the Indiana divorce had been valid, no relief of the nature demanded could have been granted to complainant in this state. Assuming — as we must, to give the court in Indiana any jurisdiction — that defendant resided within that state, the case would be such that both that state and this had authority, in respect to the marriage rеlation, to determine upon its validity, or to dissolve it, so far as the party resident within it is concerned. If one proceeds first there is no legal impediment to the other’s taking like steps afterwards, if it appears important to the protection of am,y property rights.” It is true, the statute of that state in terms expressly authorized the granting of a second divorce in the discretion of the court at the suit of the resident party, notwithstanding the other party had obtained a divorce in another state. But it will hardly be claimed, that that provision gives or undertakes to give jurisdiction. It merely gives an additional ground for divorce. As already observed, jurisdiction in Michigan, as well as here, is made to depеnd solely upon the residence of the plaintiff. Being dependent solely upon the residence of the plaintiff m Michigan, it could not be made to depend upon the action or non-action of the courts of other states at the suit of the other party to the controversy. Of course, if the suit in Indiana terminated the marriage status of the party residing in Michigan as effectually as it could the one in Indiana, and put each party in the same position as to each other and the property of each as they were prior to the marriage, then a statute authorizing a subsequent divorce would be as ineffectual as a statute authorizing a divorce between two single рersons. On the contrary, the provision of the statute in question presupposes that where the parties live in different jurisdictions a divorce by one, in the jurisdiction in 'which he resides, does not for all purposes preclude a divorce by the other party in the other jurisdiction.

In Doughty v. Doughty, 28 N. J. Eq., 581, affirming S. C., 27 N. J. Eq., 315, it was held that “ a decree in a divorce suit will have no extra-territorial effect when the defendant is domiciled in another state, and is not served with process nor with notice of the proceedings. A decree for divorce, to be entitled to extra-territorial effect, when the person of the defendant is without the jurisdiction, must be obtained in a manner consistent with natural justice, and such decree is enforced in another state only on the ground of comity.” In that case a divorce was granted at the suit of the wife, notwithstanding a former divorce granted at the suit of the husband in a court of Illinois. In speaking of the Illinois divorce, Beasley, O. J., said: “A judgment obtained in such a proceeding, authorized by the local authority, would incontestably have, a local force. Each government has the undoubted right to regulate the formation and dissolution of the marriage contract, so far as such contract affects its own citizens. . . . The consideration that a government has the right to regulate, as to its own citizens, the matrimonial relationship, has now lost the greater part of its force, and it is met by the countervailing principle that such government has no just claim to a right to impose its policy beyond the limits of its own territory. This embarrassment reaches its acme when the parties to the marriage have their domiciles in different states. In such a position of things it is not difficult to declare that a proceeding for divorce, carried on in the state wherein is the domicile of one of the parties, shall operate as to the change of status of such party within the territory of such state; but it is difficult to find any principle for declaring that such proceedings shall have the effect of changing the status of the other party in the state wherein he is domiciled. . . . The right of the foreign court to adjudicate, with respect to the status of its own domiciled citizens, is undisputed, hut I have .failed to see how its right to decide the status of a citizen of this state, by such adjudication, is to be conceded. . . . All the claim which such an adjudication has to foreign recognition, in my opinion, rests on the ground of comity. . . . But an appeal of this kind to interstate comity should, I think, never prevail, when the judgment sought to’ be accredited has been rendered in violation of that fundamental axiom of justice, before referred to, that the parties, before their rights are adjudged, shall have an opportunity of being heard.”

In Mansfield v. McIntyre, 10 Ohio, 27, it was held that a decree in Kentucky did not bar the right of dower in lands lying in the state of Ohio. The court said: “Erom anything which appears in the case, this divorce ought to bе deemed valid in this state as well as in the state where it was pronounced. The petitioner was a resident of Kentucky. The defendant had been a resident. By the laws of that state the court had jurisdiction,,, and the notice required by their statute had been given. But the real question is whether a divorce decreed in Kentucky, or any other state than Ohio, can have any effect upon the rights of the wife, so far as property in this state is concerned.” Cox v. Cox, 19 Ohio St., 502, was quite similar, and the court said: “ The question, therefore, is whether the ex'parte decree can be made available, not merely to effect a dissolution of the marriage, but to defeat the right of the petitioner to alimony which the statute, upon the facts as they exist in regard to the husband’s desertion, intended to provide for her. "We think the decree ought not to have such effect.”

Many courts have gone to the extent of holding that a divorce granted upon facts similar to those found in this case is absolutely void as to both parties. Vischer v. Vischer, 12 Barb., 640; McGiffert v. McGiffert, 31 Barb., 69; Hoffman v. Hoffman, 55 Barb., 269; Phelps v. Baker, 60 Barb., 107; Kerr v. Kerr, 41 N. Y., 272; Lyon v. Lyon, 2 Gray, 367; Shannon v. Shannon, 4 Allen, 134; People v. Baker, 76 N. Y., 78. In this last case the husband was convicted of bigamy. The defense was the record of a divorce in Ohio, in favor of his former wife and against him, showing proof of service of process on the husband by publication. There was no personal appearance by the husband in the divorce suit. The statute of Ohio was in evidence, from which it appeared that the proceedings in that suit were regular and sufficient, and that the judgment was valid and binding under the laws of that state. FolgeR, J., states the question involved thus: “ Can a court in another state adjudge to be dissolved and at an end the matrimonial relation of a citizen of this state, domiciled and actually abiding here throughout the pend-ency of the judicial proceedings there, without a voluntary appearance by him therein, and with no actual notice to him thereof, and without personal service of process on him in that state? . • . . We are ready to say that as the law of this state has been declared by its courts, that question ‍​​​​​‌​‌‌‌‌‌‌​​‌‌​‌‌‌​​​‌​​‌​​‌‌‌‌​‌‌​‌‌​‌​​‌‌​‌‍must be answered in the negative. . . . We must and do concede that a state may adjudge the status of its citizеns towards a nonresident, and may authorize to that end such judicial proceedings as it sees fit; and that other states must acquiesce so long as the operation of the judgment is kept within its own confines. But that judgment cannot push its effect over the borders of another state, to the subversion of its laws and the defeat of its policy; nor seek across its bounds the person of one of its citizens, and fix upon him a status against his will and without his consent, and in hostility to the laws of the sovereign of his allegiance. It is said that a judicial proceeding to touch the matrimonial relation of a citizen of a state, whether the other party to that relation is or is not also a citizen, is a proceeding in rem, or, as it is more gingerly put, quasi in rem. But it was never heard that the courts of one state can affect in another state the rein there, not subjected to their process, and over the person of the owner of which no jurisdiction has been got. Now, if the matrimonial relation of the one party is the res in one state, is not the matrimonial relation of the other party a res in another state ? ” The able judge then likens it to proceedings in rein against lands held in trust by trustees, all of whom reside in another state, and where no personal service of process is had only by publication. He then continues: “ If one party to a proceeding is domiciled in a state, the status of that party, as affected by the matrimonial relation, may be adjudged upon, and confirmed or changed, in accordance with the laws of that state. But has not the state, in which the other party named in the proceedings is domiciled, also 'the equal right to determine his status, as thus affected, and to declare by law what may change it and what shall not change it ? If one state may have its policy and enforce it, on the subject of marriage and divorce, another may. And which shall have its policy prevail within its own borders, or shall yield to that of another, is not to be determined by the facility of the judicial proceedings of either, or the greater speed in appealing to them.” The learned judge concludes: “We are not, therefore, satisfiеd with the doctrine that rests the validity of such judicial proceedings upon the right and sovereign power of a state to determine the status of its own citizens, and because it may not otherwise effectually establish it, asserts the power to adjudge upon important rights without hearing the party to be affected, and without giving him the notice which is required by the principles of natural justice, he being all the while beyond its jurisdiction. Besides, a just consideration of what is a proceedinginrem, and of the effect of a judgment therein, shows that the latter does not reach so far as is contended for it. It is a proceeding m rem merely. The judgment therein is not usually a ground of action m personam in another jurisdiction, for, as a proceeding m, personam, or as giving foundation for one, the court gets no jurisdictiоn.” Sucb is a logical statement of a perplexing question by a learned and able jurist. The force of sucb foreign judgments, obtained under sucb circumstances, rests upontbe principles of comity, and that does not go to the extent of absolute conclusiveness. 76 N. Y., 84-86; Bradshaw v. Heath, 13 Wend., 416; Pennoyer v. Neff, 95 U. S., 714; Van Fossen v. State, 37 Ohio St., 317; 25 Alb. Law J., 254; Thompson v. Whitman, 18 Wall., 457-In this last case it was held that “ want of jurisdiction may be shown either as to the subject matter or the person, or, in proceedings m rem, as to the thing.”

In Stilphen v. Stilphen, 58 Me., 508, it was held that “the fact that the husband has already obtained a divorce a vmculo is no bar to the granting of a like divorce to the wife, when, in the exercise of a sound discretion, it is deemed reasonable and proper.” The court there say: “ But it is said that when one party has been divorced thе other may lawfully marry again. Therefore, there is no necessity for a second divorce. If the sole object of a divorce suit was to enable one or both of the parties to marry again, this argument would be entitled to great weight. But this is not the case. The ultimate object is, in many cases, to enable the court to decree concerning the care and custody of the children, and make provisions for their support and education, and to secure to the wife such portions of the common estate as justice and humanity may dictate. The decree for a divorce may in such cases be regarded as a mere matter of form, necessary only to enаble the court to make the ancillary decree; for in terms the law does not authorize the court to make the latter without first making the former.” Page 515.

We have thus quoted at length from some of the best considered cases in the country, because the question involved is upon the border line, where much confusion among judicial opinions prevails, with the view, if possible, to reach a con-elusion, which will come the nearest to doing justice to parties who are unwilling to do justice to themselves, and at the same time preserve a just comity to the judicial determinations of a sister state, and the proprieties and decency of society at large. Every state has its own statutory policy with respect to marriage and divorce. Wisconsin has hers. This court has determined that it relates entirely to its own citizens, and not to the residents of other states, even though they are joined in marriage with persons residing in this state. Our statute declares that “when a judgment of divorce from the bond of matrimony is granted in this state by a court of competent authority, such judgment shall fully and completely dissolve the marriage contract as to both parties.” Sec. 2374, R. S. Michigan had no such statute. We have no statute declaring what shall be the effect of a foreign divorce. It is, moreover, the policy of the statute to guard'and protect the wife. Upon entering the marriage relаtion, she at once acquires an inchoate interest in her husband’s property — his lands and especially ‍​​​​​‌​‌‌‌‌‌‌​​‌‌​‌‌‌​​​‌​​‌​​‌‌‌‌​‌‌​‌‌​‌​​‌‌​‌‍his homestead. Without her signature his deed of the homestead is ineffectual for any purpose. Without her signature he can only convey an imperfect title as to his other lands. Besides, the husband is under obligations, if capable, to support his wife even if he has no lands. This obligation is so binding that this court has already held, as above indicated, that it continues even after a valid judgment of divorce granted in this state.

Thus the marriage status of the husband involves, not only his allegiance and fidelity to his wife, but an obligation of support, and a surrender to her of a certain inchoate interest in his lands. So the marriagе status of the wife involves, not only her allegiance and fidelity to her husband, but a condition of security'in respect to her future support and an inchoate interest in his lands, and especially his homestead. The marriage status of each also involves the care, custody, education, and control of the children of such marriage. The Michigan judgment, as indicated by the record, is entirely silent upon the subject of alimony, allowance to the wife, or any division of his property, or any property rights. It was a judgment in rein, but the only thing purporting to be affected by it is the allegiance, fidelity, and contract relation to his wife. It simply undertook to sever that relation. It made no allowance for alimony or support. It did not attempt to determine any right to property, nor the wife’s interest in any property. It is silent as to the status of the wife to his lands in Wisconsin by reason of the marriage. To give such a judgment the effect of barring the wife of all interest in the Wisconsin lands, is to enlarge its provisions and incorporate in it, by way of comity, what the Michigan court had no power or jurisdiction to adjudge. It would be to enable the husband to do, by way of desertion and a secret foreign divorce, what it would have been impossible for him to have accomplished had he remained a resident of this state. To give the judgment such an effect, would be to offer a premium to all discontented husbands by way of deserting their wives and obtaining a secret divorce in а foreign jurisdiction, and thus relieve his lands in this state of all inchoate interest on the part of the wife, and himself of all obligations to pay any alimony, allowance, or support. It would thus put it in the power of the husband ttr do, through the instrumentality of a foreign jurisdiction, what he could not do in the courts where he and his wife both resided. We are not disposed to sanction so great an imposition upon our own citizens, and the domestic policy of our own state. Besides, the service upon which the Michigan judgment was based, was under a statute of that state, unlike ours, purely constructive. It was by publication only. No effort seems to have been made to send any notice to the wife, and she reсeived none, notwithstanding her residence and post office address must necessarily have been known to the husband.

-^"Upon the facts found, the authorities cited, and the reasons given, we are constrained to hold that, although marriage is a status, and every state has the right to fix, regulate, and control the same as to every person within its jurisdiction, even though one of the parties may at the time actually reside in another state, yet where a husband and wife were both for some years residents of this state, and lived and johabited together therein as husband and wife upon lands Delonging to the husband, and the husband desertefi__the wife and went to another state, where he became a resident, and thereupon obtained a divorce in that state ' upon constructive notice merely, and for a cause of action (desertion) alleged to have occurred a year prior to the time when he deserted from his wife, and under a statute which made jurisdiction dependent entirely upon the fact of such / husband’s residence there, against the wife, who continued I to reside upon the same lands, and who was not personally i served with notice, and who did not appear in the action, but \ was ignorant of its pendency until after the decree therein \ was rendered, such judgment is not conclusive against the wife so as to bar a subsequent action by her in a court of this state аgainst the same husband for a divorce, alimony, (allowance, and division of such lands so situated within this state, especially where such foreign judgment of divorce was . bas^d'úpon an alleged cause of action which was false in fact.

^jBy the Court.— The judgment of the circuit court is affirmed.

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Concurrence Opinion

Taylob, J.

“While I concur in affirming the judgment in this case, I am unable to concur in all the reasons which are assigned therefor in the opinion of Justice Cassoday. I think if the judgment of the Michigan court affected the status of tbe husband and released him from the marriage with his wife, then he is no longer her husband, either in the state of Michigan or in any other state. It is difficult for me to understand how the husband can be unmarried and the wife remain married. If the courts of Michigan have the power to fix the staUos of a citizen of that state in regard to the marriage relation, in an action where the wife is not personally served and has no actual notice of the action, and is a resident in fact of another state, it seems to me to follow, as a matter of course, that it must necessarily affect the status of the wife, and she must also be released from the marriage relation. To me there does not appear to be any middle ground. Either we must hold, as the courts of New York hold* that a divorce under such circumstances has no force outside of the state in which it is granted, or we must hold that is effective to destroy the marriage relation as to both parties in all places. This seems to have been the view taken by this court in the cases of Shafer v. Bushnell, 24Wis., 372 and Hubbell v. Hubbell, 3Wis., 662; and the like view seems to have been entertained by the supreme court of the United States in the cases of Cheever v. Wilson, 9 Wall., 108-123; Pennoyer v. Neff, 95 U. S., 714, 733, 734.

But holding this view of the case I am still of the opinion that when a divorce has been granted without notice in a foreign jurisdiction, the wife at the time living in this state, and there being property here owned by the husband at .the time of the divorce in which the wife has inchoate interests, and which interests have not been secured to her by the divorce, and no other adequate provision has been made for her just alimony, that a court of equity in this state may, upon the ground of such foreign divorce, entertain an aсtion for alimony out of such property. It may be true that alimony cannot be granted except in a divorce case. Yet it is the constant practice to review that part of a judgment for divorce which awards alimony after the judgment, and to change the same when the altered circumstances of the parties seem to require it. Campbell v. Campbell, 37 Wis., 206-211; Williams v. Williams, 29 Wis., 517; Forrest v. Forrest, 25 N. Y., 501. It would seem to be no great stretch of authority to entertain a proceeding to award alimony to a wife out of the husband’s property in this state, upon the foot of a divorce granted to the husband in another state, of which she had no notice until after judgment, and by the terms of which she was not awarded a reasonable comрensation by waj7-of alimony, or even when no alimony was awarded. The power of the court to award alimony to a wife in a divorce suit does not depend on the fact that some alimony was awarded at the time the judgment for divorce was granted. The fact that no alimony was then awarded by the court is no bar to its being afterwards awarded. See cases above cited. Chief Justice Ryan, in the case of Campbell v. Campbell, says: “ The questions of alimony and custody of the children may, in the first instance, be included in the judgment of divorce, or in a subsequent and separate judgment.” Welch v. Welch, 33 Wis., 534.

It does not follow that no provision for alimony can be made to a wife after judgment of divorce, unless the application for such alimony be made before or at the túne the judgment of divorce is entered; and the case of Damon v. Damon, 28 Wis., 510, is not in conflict with this idea. All there is said in this case is that no judgment for alimony can be granted to the wife, unless she obtains a divorce from her husband. It has not, so far as I have been able to discover, been decided by this court that a wife after judgment of divorce has been entered between her ‍​​​​​‌​‌‌‌‌‌‌​​‌‌​‌‌‌​​​‌​​‌​​‌‌‌‌​‌‌​‌‌​‌​​‌‌​‌‍and her husband, and no provision made at the time for her alimony, that she cannot afterwards apply to the court and have alimony awarded to her. It appears to me that the cases above cited, showing that the court will, after a divorce and an order for аlimony has been made, change such order when the subsequent conditions and necessities of the parties make it equitable that there should be such change, covers the case of a subsequent application for alimony when no such order was made at the time of the divorce; and this should be so where the wife has never had notice of the proceedings, and so has had no opportunity to make the application at the time the divorce was granted. As the husband could not have been préj udiced by the formal judgment for a divorce from a woman from whom he was already divorced; and as the order for giving alimony was undoubtedly a just allowance, under the circumstances, the judgment should be affirmed so far as the award of alimony is concerned.

Case Details

Case Name: Cook v. Cook

Court Name: Wisconsin Supreme Court

Date Published: Nov 21, 1882

Citation: 14 N.W. 33

Court Abbreviation: Wis.