
    Gilbert v. Gilbert et al.
    
      Wife enters appearance in divorce proceedings — In court of another state — Bound by decree of foreign court, when — Cannot after-wards maintain action in this state, when — Question of recovery in one state — Of unpaid alimony decreed in another state.
    
    1. Where a wife enters her appearance in a proceeding against her for divorce, in a court of another state, and asks for and is granted alimony in said proceeding, having set up therein, her rights under a prior decree for alimony payable in installments in a suit for alimony alone in a court of this 'state, she is bound by the decree of the foreign court and cannot afterwards maintain an action in this state to recover the unpaid installments under the prior decree.
    2. A decree for alimony payable in installments in a suit for alimony alone in one state will not support an action as on a final judgment for a fixed sum in another state. ’
    (No. 12311
    Decided February 14, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    
      Nellie A. Gilbert brought suit against Frederick G. Gilbert in the court of common pleas of Cuyahoga county, and in her petition avers, that in June, 1899, the court of common' pleas of Cuyahoga county on her petition against said Frederick G. Gilbert, decreed that said defendant should pay her as alimony, seven ($7.00) dollars a week, and that in February, 1901, in the same case, said defendant was adjudged to pay her as alimony $50.00 per month for and during the natural life of plaintiff, and avers that said order remains in full force and effect as a valid and subsisting judgment; that only $80.00 has been paid on the judgment and that defendant in 1901 left the state of Ohio, and went to South Dakota. She further avers that defendant is not the owner of any property subject to levy, but that 'in 1903 he became the owner of an estate in certain property left by his father. The property is described and the petition prays that same may be ordered sold and proceeds applied in payment of plaintiff’s judgment with interest.
    To this petition Frederick G. Gilbert, in an amended answer and cross-petition, avers that on April 15, 1899, plaintiff was his wife, and on that day began suit against him for alimony alone; that afterwards the court made a weekly allowance to plaintiff; that in October, 1899,'he left Ohio and went to the state of South Dakota, took up his permanent residence and has ever since resided there.
    That in February, 1901, the court on default of defendant and in his absence entered an order requiring him to pay plaintiff the sum of $50.00 per month for and during her natural life and gave judgment for costs alone against him.
    The defendant paid $90.00 for alimony pendente lite and no more. He admits that the property described is held for him, but subject to a prior lien, and admits that the lands exceed in value plaintiff’s claim set forth in the petition and denies all the other allegations of the' petition.
    Defendant further alleges that in May, 1903, he began an action for-divorce against plaintiff in the seventh judicial circuit court of South Dakota in and for the county of Pennington; that personal service of summons and copy of the complaint in said court was made on Nellie A. Gilbert on May 25, 1903, at Cleveland, Ohio, and due service by publication was also made on her according to the laws of South Dakota; that on October 10, 1903, said- action came on to be heard and this plaintiff voluntarily appeared there in court in person and by her attorneys, and that the court heard the evidence adduced by the parties and on October 17, 1903, made and filed its findings of facts and conclusions of' law; that on said day the court granted him an absolute divorce, and this plaintiff, Nellie A. Gilbert, voluntarily asked for and was allowed permanent alimony to be paid her by this defendant until the further order of the court in the sum of $30.00 per month.
    That in said cause this plaintiff applied for permanent alimony and submitted to said court the whole question of alimony and presented to said court for its consideration, “in making final decision of the rights of the parties therein on the question of alimony, the orders and doings of-this court as well as all other claims that plaintiff herein had or claimed to have against defendant herein. That by the terms of the decree in said cause the allowance of alimony therein was adjudged to be in lieu of and in full “satisfaction of all other allowance, claims and demands in favor of her against him.”
    That also on application of this plaintiff he was by said court ordered to pay plaintiff’s attorneys $100.00 for services, which he did.
    That said decree is in full force and unreversed and that by reason of the premises she is now estopped from asserting any claim on the order on which this action is based. The answer further alleges that said circuit court in and for the county of Pennington, South Dakota, is a court of general jurisdiction with full and complete jurisdiction of the subject-matter and of the persons, parties to said action.
    The cross-petition prays that the original decree set up in the petition herein be vacated and held for naught.
    A demurrer filed by plaintiff to this answer and cross-petition was sustained and defendant not desiring to plead further a decree was entered for plaintiff for $6,960.83, and an order to sell the real property.
    This decree was affirmed by the circuit court, and error is prosecuted to reverse both judgments.
    
      Mr. J. P. Dawley and Mr. Frank A. Beecher, for plaintiff in error.
    
      Mr. W. D. McTighe and Mr. F. R. Marvin, for defendant in error.
   Johnson, J.

We think the amended answer stated a good defense and that the demurrer filed by plaintiffs should have been overruled. Mrs. Gilbert appeared in person and with counsel in the case in South Dakota. She filed her answer in .that case, resisted the application for divorce and prayed for the allowance of permanent alimony. By these acts she voluntarily submitted herself to the jurisdiction of the South Dakota court, consented to and invoked the consideration and adjudication by that court of all the marital rights and relations between the parties, and is bound by its decree.

The original proceeding in Cuyahoga county was for alimony alone, while that in South Dakota, as'finally submitted, is one for divorce and alimony. And in considering the original decree in Cuyahoga county in connection with that in South Dakota, it must be noted that alimony in a suit for alimony alone is different from alimony in a suit where there is a decree for alimony and divorce. In rendering a decree for alimony alone the court necessarily has in view that the marital contract still exists; that the parties are still bound by all its mutual obligations; that they may become reconciled and that the grounds and the desire for the allowance may be wiped out at any time. A decree in such a case is continually subject to modification, while in rendering a decree for divorce and alimony the court determines the ultimate relation of the parties and fixes the amount and the mode of payment of any money pr property allowance to the wifo. And when there is a divorce in a proceeding in which the wife is in court asserting her rights and asking for affirmative relief, she is concluded by the decree in that proceeding. Julier v. Julier, 62 Ohio St., 90; Hunt v. Hunt, 72 N. Y., 217; 14 Cyc., 820; Lynde v. Lynde, 181 U. S., 183.

In Weidman v. Weidman, 57 Ohio St., 101, it is held: “Where a wife obtains a divorce from her husband in this state without a decree for alimony, he being personally served with process, she cannot thereafter maintain a separate action against him for alimony.” At page 104 of the opinion the court say: “When both parties have their day in court in the divorce proceedings, and permit the marriage contract to be severed, without at the same time having their property rights growing out of such contract and relation,adjusted, it will be held that they have conclusively waived and' withdrawn the consideration of that question from the court, and neither of them can thereafter be heard in aid of an adjudication as to such property, or as to such property rights.”

It follows, of course, that if alimony claims are adjusted in the decree in such a proceeding the parties are equally bound.

It is contended on behalf of Mrs. Gilbert that the court in South Dakota should have accepted the order in Cuyahoga county as conclusive on it and should have given it the same force as a judgment of another state is entitled to. This contention is not sound. A money decree for alimony is not a judgment in the full legal meaning of the term. It is not a provable claim under the bankruptcy statute. It does not become dormant because of failure to issue execution on it for more than five years. Lemert v. Lemert, 72 Ohio St., 364; State, on Complaint of Cook, v. Cook, 66 Ohio St., 566.

An order or decree for alimony payable in installments where there is no decree for divorce is subject to be modified, changed or terminated by the future action of the court, having before it the parties themselves and all of the facts and the then existing circumstances. Olney v. Watts, 43 Ohio St., 499; Myers v. Myers, 3 N. P., 162; Sargent v. Sargent, 8 N. P., 238.

An order for alimony payable in installments made in a divorce action in one state, subject under the laws, of that state to modification, will not support an action as on a judgment in another state, as the same is not a final judgment for a fixed sum. Lynde v. Lynde, 162 N. Y., 405, Bleuer v. Bleuer, 27 Okla., 25. Inasmuch as it is well settled that the original order for alimony which was entered in favor of Mrs. Gilbert in Cuyahoga county was not a judgment within the strict meaning of the term, but was such an order as was continually subject to modification, and inasmuch as Mrs. Gilbert elected to submit all her rights under said order and any other claims or demands which she had against her husband to the court in South Dakota, she is now estopped and will not be heard to again assert in this state any of the rights she may have had under the original decree, which was so determined by the court in South Dakota. Petersine v. Thomas, 28 Ohio St., 596: Patton v. Loughridge, 49 Ia., 218; Babcock & Co. v. Camp, 12 Ohio St., 11; Fischli v. Fischli, 1 Blackf., 360.

The presumption is that the court in South Dakota having before it as part of the case the original decree in Cuyahoga county, with -full information as to the conduct of the parties since that decree as well as other circumstances proper to be considered under the pleadings in that case, entered such a decree as was justified, and that that court gave such force and credit to the Cuyahoga county decree as such a decree was entitled to, in connection with all the other circumstances.

We think the judgment of the courts below should be reversed.

Judgment reversed.

- Spear, C. J., Davis, Shauck, Price and Donahue, JJ., concur.  