
    Woods v. Waddle.
    
      Alimony after divorce in foreign jurisdiction.
    
    A. and P. were married in West Virginia at their domicile, where A. retained his domicile, but P. went to Tennessee, where, in ex parte proceedings, she obtained a divorce a vinculo from A., but, as there was no personal service upon A., her application for alimony was dismissed without prejudice and to enable ber to sue for it elsewhere. She then brought suit here for alimony alone, and to reach certain property in Ohio belonging to A.; in which case she obtained service upon A., who also appeared and filed pleadings in the case, and on trial the court found sufficient cause and allowed her alimony. Held, P. had a right thus to bring her action for alimony alone, and she could have her claim therefor determined, and, if sustained upon trial, the court could allow her reasonable alimony out of the'property of A.
    Error to the District Court of Belmont county.
    Archibald Woods and Pauline V. Waddle were married August 22, 1872, at Wheeling, in West Virginia, the domicile of both, and where Archibald Woods has since resided. In the early part of 1874 they separated, and she went to the state of Tennessee, and on August 14, 1875, applied for divorce and alimony. On March 23,1877, she obtained a decree “that complainant be and she is hereby divorced a vinculo from Archibald Woods, and is hereby restored to all the rights and liabilities of a feme sole, with her maiden name, Pauline V. Waddle, forever free from the control and dominion of Archibald Woods. But this cause is retained as to the matter of alimony and for no other purpose.” And on July 1, 1880, the decree as to alimony was as follows: “ It appearing that defendant is a non-resident, the court, on motion of the plaintiff, dismisses this cause as to alimony without prejudice to the plaintiff, so that e'he may be enabled to proceed in a foreign jurisdiction for recovery thereof, or do any other act necessary therein.”
    On February 19,1881, she began suit in Belmont county, Ohio, for alimony onty, alleging her bona fide residence in Ohio “for the year last past.” She charged Archibald Woods with habitual drunkenness from the time of their marriage, and with extreme cruelty about January 10, 1874. She described certain land owned b3 him in that county, and asked for alimon3 and other equitable relief.
    A demurrer to the petition was sustained in the court of common pleas, and the case was appealed to the district court. The district court overruled the demurrer, and on trial the court made the following finding and decree, viz :
    
      “ The court having heard the evidence and arguments of counsel, and being fully advised in the premises, find the defendant has been guilty of habitual drunkenness as alleged in the petition, and that by reason thereof plaintiff is entitled to alimony out of the estate of the defendant, Archibald Woods, and the court allows said plaintiff as reasonable alimony in money the sum of $1,000. It is therefore considered, ordered, and adjudged by the court that the plaintiff, Pauline V. Waddle, recover from the defendant, Archibald Woods, the said sum of $1,000, allowed her as alimony aforesaid, and that said defendant also pay the costs of this action, which are here adjudged against him. And the said judgment for $1,000 and costs is hereby made a lien upon the farm, described in the petition.”
    Plaintiff in error now seeks a reversal of the judgment.
    
      John F. Kelly, for plaintiff' in error.
    After a vinculo divorce, alimony can not be granted by another court in an independent proceeding. Nor can it be allowed upon a foreign ex parte divorce, or after such divorce, or for cause which occurred before such divorce.
    After the termination of the proceedings in Tennessee, the defendant in error could not obtain alimony in another jurisdiction for the same cause whieh enabled her to obtain her divorce. The Ohio courts had no jurisdiction, because Ohio is not the domicile of the parties, of the marriage, or of the delictum..
    
    The Ohio statute provides for three kinds of alimony: (1) temporary alimony, known as alimony pendente lite, provided for in section 5701, Revised Statutes; (2) alimony without divorce, section 5702; (3) permanent alimony upon the granting of a divorce a vinculo and in the same proceeding, sections 5699, 5700.
    If the wife petition for alimony alone, it can only be granted when the husband has committed one or more of the acts specified in section 5702. In such case it is not incident to a divorce, and is only allowed during the existence of the marriage relation, and not after the marriage has been dissolved. The Ohio cases support this construction. Act of 1853 (51 Ohio L. 377. § 10); Jones v. Jones, Wright, 155; Hesler v. Hesler, Wright, 210; Bascom v. Bascom, Wright, 632; Johnston v. Johnston, Wright, 454; Paige on Div. 290.
    Exclusive of the separate maintenance provided by statute, section 5702, the principle is well established that alimony can' not be granted in an Independent proceeding when it is the only thing sought.
    In -England, prior to 1858, alimony was only given in and only followed a divorce a mensa et thoro.
    
    The decisions in Alabama, California, Kentucky, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Virginia, concerning the granting of alimony, alone, apply to and govern the doctrine of separate maintenance or separate support, which has its origin in the assumption by equity of this jurisdiction at a very early date, or is granted by statute. Butler v. Butler, 4 Litt. (Ky.) 201; Galland v. Galland, 38 Cal. 265; Jamison v. Jamison, 4 Md. Ch. Dec. 289; 2 Bish. Mar. & Div., secs. 358, 359, 361.
    The court in Cox v. Cox, 19 Ohio St. 502, assumed jurisdiction on the ground that the application for divorce and alimony was made by the wife at her domicile and the bona, fide domicile of both. The husband and wife were both domiciled in Ohio. The husband deserted his wife and went to Indiana for and procured an ex parte divorce. Here the wife deserts her husband and her bona fide domicile and procures an ex parte divorce in a' foreign jurisdiction.
    In Cox v. Cox the court relied upon Mansfield v. McIntyre, 10 Ohio, 30; Richardson v. Wilson, 8 Yerg. 67; Crane v. Meginnis, 1 Gill. & J. 463; s. c., 19 Am. Dec. 237; and Shotwell v. Shotwell, Sm. & M. Ch. 51, which, it is submitted, do not support it. The first named case and Cooper v. Cooper, 7 Ohio (2 pt.) 238, were not well considered and are opposed to the current of authority. Paige on Div. 369; Harding v. Alden, 9 Me. 140; s. c., 23 Am. Dec. 549.
    
      In Richardson v. Wilson, supra, where alimony, was granted after an ex parte legislative divorce, the court did not assume original inherent jurisdiction, but statutory jurisdiction. It is not applicable to the question involved in Cox v. Cox, or to the case at bar. McBee v. McBee, 1 Heisk. 558; Rutledge v. Rutledge, 5 Sneed, 554; Nicely v. Nicely, 3 Head, 184; Swan v. Harrison, 2 Cold. 534.
    
      Crane v. Meginnis, supra, is not authority, because the chancery courts of Maryland assumed, from colonial times, and exercised at the time of the decision of that case, inherent jurisdiction to grant alimony. Wallingsford v. Wallingsford, 6 Har. & J. 485; Jamison v. Jamison, 4 Md. Ch. 289; MacNamara’s case, 2 Bland. 566; Helms v. Franciscus; 2 Bland. 544.
    
      Shotwell v. Shotwell, supra, was overruled in Lawson v. Shotwell, 27 Miss. 630, which was followed and approved in Bankston v. Bankston, 27 Miss. 692.
    
      Cox v. Cox is not supported by the cases cited and is not authority for the proposition that alimony can be granted after a divorce. It is authority on two points: (1) the domicile of the wife is not affected by the husband’s desertion ; (2) where a person leaves his domicile and procures an exporte divorce in another jurisdiction, it is fraudulent and not valid at the domicile. Van Fossen v. State, 37 Ohio St. 317. This ground and Cox v. Cox is supported by Hoffman v. Hoffman, 46 N. Y. 30; Shannon v. Shannon, 4 Allen, 134; Smith v. Smith, 13 Gray, 209; Leith v. Leith, 39 N. H. 20; Kerr v. Kerr, 41 N. Y. 272; Commonwealth v. Blood, 97 Mass. 538; Borden v. Fitch, 15 John. 140, but not by the cases cited.
    In Bowman v. Worthington, 24 Ark. 529, the wife left her husband’s domicile and obtaiued a legislative divorce in Kentucky and then commenced proceedings for alimony in Arkansas, the husband’s domicile. The court held that “ alimony being an incident to the divorce, courts can only allow it in connection with the decree of divorce, and have no power to decree it on a separate application for alimony,” reviews all the cases, repudiates Richardson v. Wilson, supra, 
      approves Fischli v. Fischli, 1 Blackf. 360, and holds the position taken by the courts of Virginia, Kentucky, South Carolina, and Alabama to be against principle and authority.
    Alimony is an incident to a divorce. Fischli v. Fischli, supra; Moon v. Baum, 58 Ind. 194; Muckenburg v. Holler, 29 Ind. 139; Chestnut v. Chestnut, 77 Ill. 346; Trotter v. Trotter, 77 Ill. 510; Prosser v. Warner, 47 Vt. 667; McGee v. McGee, 10 Ga. 477; Goss v. Goss, 29 Ga. 109; Blythe v. Blythe, 25 Iowa, 266; Harshberger v. Harshberger, 26 Iowa, 503; McEwen v. McEwen, 26 Iowa, 375; Cole v. Cole, 23 Iowa, 433; Graves v. Graves, 36 Iowa, 310.
    The same rule prevails in Maine: Jones v. Jones, 18 Me. 311; Henderson v. Henderson, 64 Me. 419; Littlefield v. Paul, 69 Me. 533. And in Massachusetts: Shannon v. Shannon, 2 Gray, 287; Baldwin v. Baldwin, 6 Gray, 342; v. Dunham, 8 Cush. 405. And in Michigan: Peltier v. Peltier, Har. Ch. 19; Perkins v. Perkins, 16 Mich. 162; Wright v. Wright, 24 Mich. 180.
    It is the law of Missouri: Simpson v. Simpson, 31 Mo. 24; Doyle v. Doyle, 26 Mo. 545, 549. It is the rule in New Hampshire: Parsons v. Parsons, 9 N. H. 317; Sheafe v. Sheafe, 24 N. H. 567. And in New Jersey: Yule v. Yule, 2 Stock. 138; Kirrigan v. Kirrigan, 15 N. J. Eq. 146; Nichols v. Nichols, 25 N. J. Eq. 60; Rockwell v. Morgan, 2 Beas. 119; Anshutz v. Anshutz, 1 C. E. Green, 162; Cory v. Cory, 3 Stock. 400. And in New York: Atwater v. Atwater, 53 Barb. 621; Perry v. Perry, 2 Paige, 501; Lewis v. Lewis, 3 John Ch. 519. And in Vermont: Harrington v. Harrington, 10 Vt. 505. And in England: Winstone v. Winstone, 2 Swab. & F. 246.
    The Tennessee divorce can not be received in Ohio as the basis for alimony, because Tennessee was not the bona fide domicile of both, or either of the parties, nor the place of delictum, nor the place of the marriage. Van Fossen v. State, 37 Ohio St. 317; Shannon v. Shannon, 4 Allen, 134; Smith v. Smith, 13 Gray, 209; Leith v. Leith, 39 N. H. 20; 
      Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 N. Y. 30.
    
      L. Danford, for defendant in error.
    That alimony, in Ohio, is an independent remedy, which may be pursued by itself, where a divorce is not sought, is a proposition too plain for discussion. Every section of the chapter of the statutes on the subject of divorce and alimony shows it. See a discussion of the subject in Graves v. Graves, 36 Iowa, 310; s. c., 14 Am. Rep. 525; Bish. Mar. & Div., sec. 350.
    When we get the distinction between the old English rule that alimony is a mere incident to a divorce and the Ohio statute thoroughly in mind, we have cleared away the difficulty that surrounds the case. See Rogers v. Rogers, 15 B. Mon. 364; 14 Am. Law Rep. 311; Walker & Bates Dig. 35; Bish. Mar. & Div., sec. 360.
   Eollett, J.

It is not claimed that Fauline Y. Waddle was not rightly divorced and restored to her maiden name; neither is it claimed that her right to alimony had ever been passed upon in any prior action.

It is not questioned that the amount of the alimony decreed is just and reasonable.

If she had not been divorced she was the wife of plaintiff in error; and, if residing in Belmont county, without doubt as a wife, under section 5702 of the Revised Statutes, she could file her petition for alimony alone. Section 5702 provides . . . ; “ the wife may file her petition for alimony alone, or, if a petition for divorce lias been filed by the husband, she may file her cross-petition for alimony, with or without a prayer for the dissolution of the marriage contract,” and “habitual drunkenness” is specified as a cause for alimony. The old English doctrine that “ alimony has no independent existence,” is not the law of Ohio.

As to where and by whom a petition for alimony may be filed, section 5690 of the Revised Statutes provides as follows: “The plaintiff, except in an action for alimony alone, shall have been a resident of the state at least one year before filing the petition; all actions for divorce, or for alimony, shall be brought in the county where the plaintiff has a bona fide residence at the time of filing the petition, or in the county where the cause of action arose; and the court shall hear and determine the same, whether the marriage took place or the cause of action occurred, within or 'without the state.”

No question is made by the record as to her alleged bona fide residence in Belmont county, as is required by law. The record shows legal service and the personal presence of the parties in court.

The language of the statute is : “ The eourt shall hear and determine the same, whether the marriage took place or the cause of” divorce (or, as here, alimony) “occurred within or without the state.” And the court found the plaintiff in error “ guilty of habitual drunkenness, as alleged in the petition.” This is the “ cause ” for alimony.

Thus the language of the statute answers nearly all the questions presented in this case.

It is not claimed that this woman’s right to alimony had been passed upon by any court; and the Tennessee court, not having jurisdiction of this matter, did not pass upon it, and it could not adjudge alimony in that case. 2 Bish. Mar. & Div., sec. 170; Whar. Ev. 818.

So far as appears the action in Belmont county was the first in which the defendant in error could recover alimony from the plaintiff in error, and no limitation is claimed. But the words of the statute (§ 5702 Rev. Stat.) are: “the wife may file her petition for alimony alone.” May the word “wife,” as used in this statute, include a woman divorced, as was this defendant in error ?

In the case of Cox v. Cox, 19 Ohio St. 502, this eourt allowed the benefits of this statute to a woman whose husband had been divorced from her by a court in Indiana, while she remained domiciled in Ohio. In that case, on page 512, White J., said:. “ It is hot essential to the allowanee of alimony that the marriage relation should subsist up to the time it is allowed.- On appeal, alimony may be decreed by the district court, notwithstanding the subsisting divorce pronounced by the court of common pleas. It is true the statute speaks of the allowance as being made to the wife. But the term ‘ wife ’ may be regarded as used to designate the person, and not the actual existing relation; or the petitioner may still be regarded as holding the relation of wife for the purpose of enforcing her claim to alimony.”

He thus shows that the word wife designates the person divorced after the divorce is granted. He further considered the questions at length and the court there held: “ That the decree of divorce was no defense to her petition for alimony.” The principles there stated and held sustain this judgment.

Here there is no showing of fraud on the part of the defendant in error, nor any claim that the plaintiff in error has been wronged by having the alimony suit tried in a separate action.

"We think that, under the law of this state, the district court, in allowing alimony to the defendant in error, did not err. Judgment affirmed.  