Van Orsdal v. Van Orsdal

Sep 25, 1885
Reporters:
,
Before:
Seevers
Seevers, J.

1 divorce in vaii^ity^olin iowa. I. The parties were married in this state in 1878, and the plaintiff has at all times since then been a resi- °*’ state. On the same day the mar-Rage took place the defendant left Iowa and became a resident of Nebraska, and in May, *361880, he obtained a divorce from the plaintiff ‍‌​‌​‌‌​​‌‌‌​​​‌‌‌​‌‌‌​​​‌‌‌​​‌​‌​​​‌‌​‌​​​​‌​​​‌‌‌​​‌‌‌‌​​‌‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​‌‌​​​‌‌​​‌‌‌​‌‌‌‌‍in that state. Notice of the application of such divorce was personally served on the plaintiff in this state, but she failed to appear or make any defense. There is no sufficient evidence that such divorce was obtained by fraud, and it is deemed sufficient to say, without referring to the evidence, that the decree of divorce granted in Nebraska must be recognized as valid in that state. Counsel for the appellee do not claim otherwise. Their contention is that, although the divorce granted in Nebraska may be valid in that state, yet it is invalid in Iowa, and this is the material question to be determined. The policy and ‍‌​‌​‌‌​​‌‌‌​​​‌‌‌​‌‌‌​​​‌‌‌​​‌​‌​​​‌‌​‌​​​​‌​​​‌‌‌​​‌‌‌‌​​‌‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​‌‌​​​‌‌​​‌‌‌​‌‌‌‌‍laws of the two states are substantially the same as to the mode of procedure that may be adopted to obtain a divorce; that is to say, it is provided by statute in both states that a divorce may be obtained by a resident from a non-resident by service of a notice by publication, or by a personal service on the defendant in some other state or country. This being so, what effect should be given to the Nebraska divorce in the courts -of this state? This has been a fruitful subject of discussion by the text writers, and in the courts of this country. It will be con•ceded that ‍‌​‌​‌‌​​‌‌‌​​​‌‌‌​‌‌‌​​​‌‌‌​​‌​‌​​​‌‌​‌​​​​‌​​​‌‌‌​​‌‌‌‌​​‌‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​‌‌​​​‌‌​​‌‌‌​‌‌‌‌‍the authorities ai’e not entirely in accord. The whole subject has been exhaustively discussed in text-books, and by judges of learning and ability. We therefore do not deem it necessary to state any reasons in support of the conclusion reached, which is, that as the divorce granted in Nebraska is valid there, it must be regarded as valid here. In support of this conclusion we refer to chapter 92, Pish. Mar. & Div., and authorities cited in notes.

2._;gul>_ tfmi‘ior ailmony m iowa. I.I. Counsel for appellee insist that, notwithstanding the Nebraska divorce is valid, yet the plaintiff may be awarded alimony in this state out of property found here. Conceding this to be ‍‌​‌​‌‌​​‌‌‌​​​‌‌‌​‌‌‌​​​‌‌‌​​‌​‌​​​‌‌​‌​​​​‌​​​‌‌‌​​‌‌‌‌​​‌‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​‌‌​​​‌‌​​‌‌‌​‌‌‌‌‍true and ajoplicable in a certain class of cases, we feel sure that the rule cannot apply to the case at bar. The divorce was granted, as has been said, in May, 1880. In November, 1881, the *37defendant’s father died .in this state, possessed of certain property, which the defendant inherited. Now, while it may be that the plaintiff might be entitled to alimony if the defendant had owned property in the state at the time the divorce was procured in Nebraska, she cannot be so entitled because he has subsequently acquired property. The plaintiff, if entitled to alimony, was so entitled at the time the divorce,was granted. The relation of ‍‌​‌​‌‌​​‌‌‌​​​‌‌‌​‌‌‌​​​‌‌‌​​‌​‌​​​‌‌​‌​​​​‌​​​‌‌‌​​‌‌‌‌​​‌‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​‌‌​​​‌‌​​‌‌‌​‌‌‌‌‍husband and wife then ceased, and neither party is entitled to any share of or interest in property which may be subsequently acquired.

The judgment of the circuit court is reversed, and the case remanded to that court with directions to dismiss the petition, or the defendant at his option may have a decree in this court.

Reversed.