
    John Cox v. Mary F. Cox.
    1. The effect of an appeal under the statute, from a decree for alimony, is to reopen, for trial in the appellate court, all the issues of fact upon which the rights of the parties, in respect to alimony, depend, notwithstanding a divorce was granted in the court below, which remains unaffected by the appeal.
    2. A husband deserted Ms wife in this State, where both parties, up to the time of the desertion, were domiciled. To a petition filed by the wife for divorce and alimony, the husband appeared and answered, setting up a decree of divorce obtained by him in another State, in a proceeding in wMch there was no jurisdiction of the person of the wife except by constructive service, and of wMch proceeding she had no actual notice — Held: That the domicile of the wife remained unaffected by the desertion of the husband, and that the decree of divorce was no defence to her petition for alimony.
    Error to the district court of Hamilton county.
    On the 12th of March, 1861, Mary F. Oox, the defendant in error, filed her petition, in the court of common pleas of Hamilton county, against John Oox, the plaintiff in error, stating that she had been a resident of the State for the year preceding, and was then a resident of the county; that about the 3d of July, 1856, at Warren county, Ohio, she was married to said John Cox, and had ever since been to him a faithful and obedient wife; that he, disregarding Ms duties as husband, had been wilfully absent from the plaintiff for more than three years then last past, without any cause or justification, so far as she was concerned; that he had, also, been guilty of gross neglect of duty, in that, for more than three years, he had not contributed in any degree to her support. She therefore prayed to be divorced from Mm, and for such other and further relief as she was in eqmty entitled to.
    The defendant was brought into court by publication alone,'and answered January 6, 1865, denying that the plaintiff had been a faithful and obedient wife, and averring that on the 19th of December, 1860, and for a long time prior thereto, the defendant was a resident of Fountain county, Indiana; and that prior to that time, the plaintiff, without cause abandoned the defendant, and went to. her father’s house in Hamilton county, Ohio, and refused to remain and live with defendant as his wife; that on the 19th of December, 1860, defendant filed a petition against the plaintiff, in the circuit court of Fountain county, Indiana, asking, for the cause, above stated, which was a legal ground for divorce by the laws of Indiana, that a divorce might be granted “ of the marriage existing between them; ” that the defendant in that proceeding was duly notified of the pendency, purport, and prayer of that petition, by publication according to the laws of Indiana, and was required to appear and plead, answer, or demur to that petition at the then next term of the court held in February, 1861, as provided in such cases by the laws of Indiana; that at that term, to wit, on March 5th, 1861, the court having jurisdiction over the parties and over the subject-matter of divorce, such proceedings were had in the premises, that the court entered a decree in the cause dissolving the bonds of matrimony then existing between the parties, as fully and absolutely as if the same.had never existed, and that such decree remains in full force and effect. That from and after that date the said Mary F. Cox ceased to be bis wife. He denies that he ever neglected any duty as husband; and denies that the plaintiff is entitled to any judgment or decree against him for alimony or for costs.
    November 20, 1865, the plaintiff replied: Denying that she ever abandoned the defendant, and refused to live with him as his wife, and went to the house of her father; or that she ever behaved in any way other than as a faithful and obedient wife; averred that when she went to her father’s house, which was in Butler, not in Hamilton county, to live, after having lived with the defendant, it was because he had abandoned her, and left her without means of support or a home; that she has always been ready, and has, at every suitable opportunity, made known to the defendant her readiness, to live with him and perform faithfully all her duties; and that the defendant has, for about eight years last past, continually refused to live with hex-, or contribute, in any way, to her support, and has entirely absented.himself from hex’, and avoided her company, and has continually refused and neglected to perform any and every duty of a husband toward her. That she has never been' a resident of Indiana, and has never had actual notice of the pendency of any suit for divorce against, hex’, in any couxi of that State; and that no coui’t of that State has ever had jurisdiction over hex’, for the pux’pose of interfering in any way, with her rights as a max’ried woman resident in Ohio, and that she has never ceased to be the wife of the defendant since her max’riage with him; and that she was not informed ’ of the alleged proceedings against her for divorce in Fountain county, Indiana, or their x’esult, until after she had filed her petition in this court, in this cause ; although the defendant well knew, at all times, whex-e and how to find her place of residence, which was but five ox* six xniles from his, in Ohio. That the defendant never became, in good faith, a resident of Fountain county, Indiana, and that the alleged decree of divox’ce, set - up in his answer, was fraudulently obtained, is a fraud upon her x-ights, and is not a decree valid and binding upon the plaintiff, and does not legally or equitably affect or bar her rights, and contains no finding of any fact upon which to base a-judgment or decree against her; and that the material allegations of the petition in the suit against her were and are untrue, and are insufficient to give her due notice that she was concerned in said suit, and do not show sufficient cause for divorce, according to the laws of Indiana in force at the time the suit was brought and the decree rendered. The plaintiff therefore .demands that the alleged decree of divorce against the plaintiff in Fountain county, Indiana, be held for naught • that on hearing this cause she may be divorced from the defendant, and have judgment against him for costs and for suitable alimony.
    December 18, 1865. The defendant demurred to this reply, as insufficient in law. The demurrer was overruled, and exception-taken.
    June 25, 1866. The plaintiff filed an amendment to her petition, praying for alimony for her support, -and to defray the costs and expenses of the litigation.
    June 30, 1866. The common pleas found that the defendant had abandoned the plaintiff, and had been guilty of wilful absence and gross neglect of duty for more than three years as charged, and rendered a decree of divorce, and also for alimony, in-favor of plaintiff, and for costs.
    The defendant appealed.
    In the district court, in October, 1866, the defendant asked to be heard in argument in support of his demurrer to the plaintiff’s reply in the common pleas. The court refused, holding that the issue attempted to be raised by the demurrer had been conclusively settled by the decree of divorce rendered in the common pleas, and that that decree, with the necessary finding of facts on which it was based, was not appealable. To this ruling the defendant excepted.
    Thereupon the cause came on to be heard on the merits. On the trial, the only evidence offered by the plaintiff to prove the allegations of the petition as to the wilful absence and gross neglect of duty charged against the defendant, consisted of the findings and decree of the court of common pleas in the case. To the introduction of this evidence the defendant objected; but his objection was overruled, and the decree and findings of fact were received in evidence for the purpose of proving the divorce of the parties, and the existence of the grounds alleged in the petition for which the divorce was granted. The defendant excepted. The plaintiff also gave evidence showing the character and value of the defendant’s property. No other evidence was offered on the part of the plaintiff.
    The defendant on his part proved that in April, 1857, he removed to Fountain county, in the State of Indiana, where he had ever since resided. He also offered to read in evidence the transcript of the record of a suit for divorce, instituted by him against the plaintiff in the circuit court of said county, showing that by a decree of said court he was divorced from the plaintiff in March, 1861. It was agreed by counsel that in obtaining said divorce in the circuit court of Fountain county, the statutes of Indiana on the subject of divorce had been strictly complied with.
    The plaintiff’s counsel objected to this transcript being received in evidence; also to certain testimony contained in depositions showing thet circumstances under which said suit was prosecuted and the divorce obtained. The objection was sustained by the court, on the ground, as held by the court, that the decree of the court of common pleas of Hamilton county conclusively showed a marriage existing at the time of the rendition of said decree between the parties, and that the evidence so offered tended to re-open the primary findings of fact in said decree of divorce. The defendant excepted.
    The court rendered a decree for alimony against the defendant, and for costs.
    A motion for a new trial was filed on behalf of the defendant, assigning, among other grounds thérefor, the refusal of the court to allow the defendant’s counsel to he heard in support of the demurrer to the plaintiff’s reply; the receiving in evidence the decree'and findings of the court of common pleas; and the refusal to receive in evidence the record of the divorce granted in Indiana, and the testimony in conneclion therewith. The motion, was overruled, and exception taken.
    It is now sought, by petition in error in this court, to reverse the judgment rendered by the district court.
    
      Thomas MilKhm for plaintiff in error:
    1. The district court erred in receiving as conclmsime the decree and findings of the common pleas ; and in refusing to receive in evidence the Indiana decree.
    An Indiana decree of divorce is a bar to a petition for divorce in Ohio. Cooper v. Cooper, 7 Ohio, 594.
    Notice by publication in Kentucky is sufficient to give the court jurisdiction to grant a divorce to a plaintiff domiciled there, though the defendant resided in Ohio. Mansfield v. McIntire, 10 Ohio, 30.
    Both need not be domiciled there. Toland v. Toland, 2 Blackf. 407.
    Every State has the right to determine the status or domestic condition of every person domiciled within its borders. Wilcox v. Wilcox, 10 Ind. 436; Beard v. Beard, 21 Ind. 328; Bishop on Divorce, 728, 717, 714, 720, 731 et seq.
    
    This power has been exercised in reference to slavery, matrimony, minority, legitimacy, insane persons, voters, etc. 2 Am. Lead. Cas. Eq. 805; Hood v. Hood, 11 Allen, 198; 28 Ala. 12, 17; 9 Greenl. (Maine) 149; 4 Rhode Isl. 95; 3 Wis. 662; 4 Chand. 96; 4 Wis. 64.
    The above cases deny the jurisdiction to decree alimony where notice is by publication.
    The only cases which hold that notice by publication is not sufficient to give jurisdiction to decree divorce, are 3 North Car. 568; 17 N. Y. Pr. Rep. 18.
    The supreme court of the United States recognizes the principle I contend for. Cheever v. Wilson, 9 Wallace, 108. In reference to decrees for divorce, it recognizes no distinction between personal notice and notice by publication. 14 How. 334.
    The Indiana decree cannot be attacked for fraud, either directly (9 Ohio St. 534) or collaterally (Anderson v. Anderson, 8 Ohio, 108, 110); and there was no fraud.
    If a plaintiff brings a foreign judgment into our State court and attempts to enforce it, in that case perhaps the defendant could attack it for fraud, for the plaintiff voluntarily brings it before the court, and asks the aid of the court to enforce it. 2 Kent, 95 (120); Story’s Confl. Laws, 988.
    The Hamilton county common pleas decree is no estoppel as to alimony. The case, on appeal, must be tried upon the issues made in the inferior court. The appeal carries up the question as to the right to alimony as well as to the a/mownt —the question of the existence of the relation of husband and wife in 1866.
    3. Conceding the validity of the Indiana divorce in 1861, it is a bar to the proceeding for alimony in 1864. . •
    If a right exists, under the circumstances, to ask for alimony, it' ought to be insisted on in the same forum where the decree of divorce was rendered.
    But a claim for alimony can only be asserted while the marriage relation exists. O'Donnel v. O'Donnel, Disney's Rep. 302; Doyle v. Doyle, 26 Misso. 545; Yule v. Yule, 2 Stock. (N. J.) 138; Abnaker v. Abnaker, 53 Barb. 621; Bishop on Marriage and Divorce, 549; Bowman v. Worthington, 24 Ark. 522; Hedrick v. Hedrick, 28 Ind. 291.
    
      Caldwell & Caldwell for defendant in error:
    It was not competent for the defendant in the district court to prove that no marital relation existed between the parties at the time the plaintiff filed her petition in the common pleas. The question of the existence of the marriage had been necessarily adjudicated by the common pleas before decreeing the divorce. A question adjudicated by a tribunal having jurisdiction cannot again be tried.
    The decree of divorce and its necessary findings could not be opened up on appeal as to alimony alone. The district court could only inquire whether the amount of alimony was excessive. It was the duty of that court to consider the question as to the existence of the marriage in 1864 an adju dicated question. That court was right, therefore, in refusing to hear the transcript of the Indiana decree.
    
      Dutchess of Kingston's case, 2 Smith's Lead. Cas. (5th Am. ed.) 424; Hopkins v. Lee, 6 Wheaton, 109; Sibbard v. The United States, 12 Peters, 488; Bank of the United States v. Beverly et al., 1 Howard, 148; Grant v. Ramsey, 7 Ohio St. 157; Babcock v. Camp, 12 Ohio St. 11; Hibsham v. Dullebam, 4 Watts, 191; Bowman v. Sanford, 5 Foster (N. H.), 87.
   White, J.

The first question in this case is, whether the foundings of fact by the court of common pleas against the defendant below, on the issues as to his alleged wilful absence and gross neglect of duty, were, for the purpose of determining the right of the plaintiff below to alimony, vacated by the appeal.

The findings as to these facts constituted the basis of the decree rendered by that court, both as to the alimony and the divorce.

It is contended by the counsel for the plaintiff below, that as the court of common pleas had exclusive jurisdiction of the question of divorce, the matters in issue upon which the decree of divorce was founded were to be regarded by the district court, on the trial of the appeal from the decree for alimony, as res adjudicata. They rely upon the general proposition, “ that the judgment of a court of exclusive juris; diction, directly upon the point, is conclusive upon the same matter, between the same parties, coming in question in another court, for a different purpose.”

But this proposition has no application where the matters adjudicated in the court below are pending on appeal.

In this case the appeal vacated the decree for alimony, and, unless limited by the statute, the effect of the appeal was to re-open for trial in the appellate court all the issues of fact upon which the rights of the parties in respect to alimony depended.

Hnder the-statute the wife is authorized to file her petition for alimony alone; or in case a petition for divorce.has been filed by the husband, she may file a cross petition for alimony, with, or without a prayer for the dissolution of the marriage contract.

On the subject of appeal the statute, .in addition to other cases named, provides, that, “in cases in which the court shall give judgment in favor of the wife, without granting a divorce, . . . and in cases where judgment is rendered for both divorce and alimony, either party may appeal from any final judgment- or order to the district court, as in other cases; . . . provided, also, that in cases where judgment is rendered for both divorce and alimony, the appeal shall apply only to so much of the judgment as relates to the alimony.”

Under this statute the dissolution of the marriage decreed by the court below remained unaffected by the appeal; but for all the purposes of allowing or disallowing alimony, the case was as effectually opened upon its merits, in the appellate court, as it would have been in case the petition and the decree appealed from had been for alimony alone.

The second question is, whether the Indiana decree of divorce constitutes a defence to the claim for alimony.

It is not necessary in this case to examine the decisions favoring the doctrine that a foreign decree of divorce is void, where the defendant was non-resident, and there was no jurisdiction of his person except by constructive service; nor those which make the validity of such decree depend upon the place of the marriage, or of the offence.

The statute and the decisions of this State are to the effect, that the place of the marriage, of the offence, and the domicile of the defendant are not necessary to jurisdiction. It is sufficient here that the petitioning party has been a lonáfide resident of the State for the statutory period, and that the suit is instituted in the proper county. 1 S. & C. Stat. 513; Cooper v. Cooper, 7 Ohio, 594; Mansfield v. McIntire, 10 Ohio, 27.

The same rule prevails in many of the other States. Harding v. Alden, 9 Greenleaf's R. 140; Ditson v. Ditson, 4 Rhode Isl. R. 87; Tolen v. Tolen, 2 Blackf. R. 407; Thompson v. The State, 28 Ala. R. 13; Gleason v. Gleason, 4 Wis. R. 64; 2 Bishop on Marriage and Divorce, Ch. XI.

The ground upon which the validity of these decrees is maintained is, that marriage, being a relation involving the social status of a party to it, the State of which the complaining party is a Toona-fide resident has the right to determine his matrimonial status; and, in view of the new relations that may be formed in consequence of the dissolution of the marriage, in the State where the decree is pronounced, that public policy requires the recognition of the validity of such decrees in other States.

But the principle upon which the validity of such decrees rests does not require that they should be allowed to operate in the foreign jurisdiction beyond the dissolution of the marriage. Harding v. Alden, supra; 2 Kent's Com. s. p. 110, note a.

In speaking to this point, Mr. Bishop, in his valuable work above referred to, says : The granting of a divorce by the one State, under these circumstances, does not interfere with the rights of the other State, or its apparently divorced subject. Probably the decree is not directly binding upon the person of such subject, unless he appears and answers to the suit, or, at least, has notice of it, served upon the person within the jurisdiction of the court rendering it. He is not necessarily bound by any collateral clause in it, as, that he pay alimony; and he only ceases to be a husband because he has ceased to have a wife.” 2 Bishop on M. & D., § 156 (731), § 170 (739).

In the present case, the marriage was solemnized in this State, where both the parties had their domicile until the desertion of the husband. The wife’s domicile remained unaffected by his desertion. She had no knowledge of the proceedings for divorce until after the filing of her present petition, and, if her allegations are true, the grounds upon which the husband obtained the divorce were false.

At the time of the offence this State was, and still is, the place of her domicile, and, on the facts alleged in her petition, she would be entitled under our laws to either divorce or alimony, or both, at her election.

The question, therefore, is, whether the eaypa/rte decree can be made available, not merely to effect a dissolution of the marriage, but to defeat the right of the petitioner to the 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.

In arriving at this conclusion we make no distinction between a decree rendered, under the circumstances of this case, in a foreign, and one rendered in a domestic forum.

In either case, do give to a decree thus obtained the effect claimed for it, would be to allow it to work a fraud upon the pecuniary lights of the wife. Such a result, in our opinion, is rendered necessary by no principle of comity or public policy — the only grounds upon which ex-panrte decrees of divorce are authorized and supported.

It is not essential to the allowance '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.

In Mansfield v. McIntire, supra, a divorced wife was regarded as the widow of her former husband after his decease, and as such widow entitled to dower.

In Richardson v. Wilson (8 Yerger, 57) the legislature, at the instance of the husband, had by special act granted a divorce, dissolving the marriage. The act contained the following provision: “ That nothing in this act contained shall deprive the said Mary Ann of her right to alimony, if by law she is entitled to the same.” Upon bill, filed by the wife after the divorce, it was held under the statute of Tennessee, which, as regards the point now under consideration, is substantially like our own, that she was entitled to such portion of her former husband’s estate as the court, from the nature of the case, deemed proper.

A similar principle was recognized in Crane v. Meginnis, 1 Gill & J. 464.

In Shotwell v. Shotwell (1 Sm. & M. Ch. R. 51), it was held that, where, upon the bill of the wife against the husband, a decree a vmculo matrimonii has been granted, the mere omission in that decree to provide for the alimony of the wife cannot affect the wife’s right to such provision, at a subsequent time, by a separate and distinct proceeding.

In that case the circuit court, having decreed a divorce a vinculo at the instance of the wife, the superior court of chancery took jurisdiction of a bill by the divorced wife against the husband for alimony. It is said by the Chancellor in that ease that, “ a decree for alimony results from the decree for a divorce, but is not identical with it, or a necessary part of it.”

In the subsequent progress of the case, on appeal, the prayer of the wife for alimony was denied, on the ground that, as no good reason existed for her not having asked for alimony at the time she obtained her divorce, she ought not to be allowed to assert the right in a separate forum at a subsequent period.

In the decision of the case in the court of appeals it is said by the court: “ We do not intend to intimate that there may not be cases in which an original bill, after a decree for a divorce, could be maintained for alimony, but only that the present bill shows no sufficient reason for not taking, or at least asking, such a decree from the circuit court, touching the matter now in litigation. A good reason must be alleged why the alimony was not at the proper time allowed. What will be a good reason must depend upon the facts of the ease when presented.”

In regard to the bearing of the opinion quoted, upon the' case before us, it is sufficient to say, that no stronger reasons-can arise' for recognizing the right to alimony after, divorce*. than where, as is alleged in this case, the divorce was obtained upon false grounds, with no opportunity to the wife to assert the right.

For the ruling of the district court as to the effect, on appeal, of the findings of the court below, the judgment is reversed, and the cause remanded for a new trial.

Brinkerhoee, C.J., and Scott, Welch, and Day, JJ., concurred.  