
    225 F. 471
    COTTER v. COTTER.
    No. 2532.
    Circuit Court of Appeals, Ninth Circuit.
    Aug. 9, 1915.
    
      John Lyons and E. E. Ritchie, both of Valdez, Alaska, and Thomas R. Lyons and Ira D. Orton; both of Seattle, Wash., for plaintiff in error.
    S. O. Morford, of Seward, Alaska, for defendant in error.
   WOLVERTON, District Judge

(after stating the facts as above). In support of the demurrer, the defendant in error insists that the complaint is defective in that it does not show that the superior courts of the state of Washington have jurisdiction to grant divorces.

Formerly in England the ecclesiastical courts possessed exclusive jurisdiction over matrimonial causes, and such was the case at the time of the adoption of the American Constitution. Ecclesiastical courts have not been established in this country, and when it is said that the colonies and the states of the Union adopted the common law of England, it is not true that they adopted the ecclesiastical law pertaining to marriage and divorce, or the power incidental thereto of granting divorces in any form. Hence it is affirmed on authority that, in the absence of constitutional provision or express legislation, no American, tribunal has jurisdiction to grant a divorce. 14 Cyc. 581, 582; 9 Am. & Eng.Enc. of Law (2d Ed.) 739. But we think it will not be gainsaid that the jurisdiction to grant divorces is so generally conferred upon the courts of general jurisdiction in this country that it is the exception and not the rule that such courts are without jurisdiction pertaining to such causes, and it would seem that the allegation that the Washington court is a court of general jurisdiction is sufficient to sustain the action. If this position be questioned, the ninth paragraph of the complaint does allege that the Washington court was empowered, under the laws of the state, to grant permanent alimony, citing the clause of the statute relied upon. Under this clause, as we shall presently see, the court did possess the authority to grant the alimony now sought to be recovered. In view of this paragraph, looking to the complaint as a whole, there can be no doubt that it states a cause of suit as against the specific objection. Of course, if the proof should not sustain the jurisdiction in divorce causes, the plaintiff must fail, but not for the reason that the complaint does not state a cause of suit.

It is further urged that the superior court of Washington was without power or authority to grant alimony to the plaintiff, and that, even if it had such power, the decree rendered was not such a one as suit could be maintained upon in another jurisdiction, because the decree or judgment is not for any sum certain, but for alleged alimony, payable in the future by installments.

Answering these contentions in the order stated, it may be premised that the statute of 'Washington provides, as alleged in the complaint, that: “In granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable, having regard to the respective merits of the parties, and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon if for the benefit of the children, and shall make provision for the guardianship, custody, and support and education of the minor children of such marriage.” 2 Ballinger’s Codes & Statutes, § 5723.

Construing this statute, the court upheld a decree of the superior court awarding to the plaintiff $20 per month alimony and $50 attorney’s fee. In re Cave, 26 Wash. 213, 66 P. 425, 90 Am.St.Rep. 736. Remarking upon the effect of this decision, the court in a later case (Mahncke v. Mahncke, 43 Wash. 425, 426, 86 P. 645, 646), says: “We have heretofore held that Bal.Code, § 5723 (P.C. § 4637)” —being the section above quoted — “confers upon courts of this state power to award permanent alimony in the form of monthly or annual payments for support and maintenance.”

See, also, Markowski v. Markowski, 44 Wash. 594, 87 P. 914; Claiborne v. Claiborne, 47 Wash. 200, 91 P. 763; Ramsdell v. Ramsdell, 47 Wash. 444, 92 P. 278.

There would seem to be no further question respecting the court’s power to grant alimony in divorce proceedings in the state of Washington.

Respecting the remaining contention, it has been judicially settled by the Supreme Court that a decree awarding alimony payable in. future installments constitutes a proper basis for suit in another jurisdiction, under the “full faith and credit” clause of the federal Constitution, unless the right to receive the alimony is so discretionary with the court rendering the decree that, even in the absence of application to modify the decree, no vested right exists. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A.(N.S.) 1068, 20 Ann.Cas. 1061; Barber v. Barber, 21 How. 582, 16 L.Ed. 226; Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810.

In Washington, while the court may discontinue alimony permanently where granted in monthly installments until further order of the court (Mahncke v. Mahncke, supra), it may not modify a decree as to installments of alimony past due and unpaid (Harris v. Harris, 71 Wash. 307, 128 P. 673; Beers v. Beers, 74 Wash. 458, 133 P. 605).

These considerations lead to a reversal of the judgment, and the cause will be remanded, with directions to the court below to overrule the demurrer, and for such other proceedings as may seem proper, not inconsistent with this opinion.

It should be further stated, in order that there may be no misunderstanding, that the Alaska court, exercising jurisdiction respecting the action to recover on this judgment, is not exercising jurisdiction relative to divorce proceedings, and has no power to require the defendant to pay into court plaintiff’s expenses attending the cause, or counsel fees, as prayed. Whatever costs she is entitled to must follow the judgment recovered if she is successful. Barber v. Barber, supra.  