
    Heflebower v. Heflebower.
    
    
      Divorce and alimony — Jurisdiction to award alimony — Challenged in contempt proceedings — Collateral attack.
    
    (No. 16626
    —Decided May 24, 1921.)
    Error to the Court of Appeals of Hamilton county.
    The facts in this case are in substance as follows: On the 31st day of January, 1910, Robert C. Heflebower filed his petition against Helga V. B. Heflebower, his wife, for divorce, on the ground of wilful absence.
    Defendant answered by general denial and cross-petition.
    
      On the 15th of September, 1910, said cause was heard, and the following decree was entered:
    “That the defendant, in violation of her marital duties, has been guilty, for more than three (3) years last past, before the filing of the petition herein of wilful absence from the plaintiff, and that plaintiff is entitled to a divorce. * * * It is further ordered by the court that all questions of alimony, support of children and attorney’s fees, be reserved for further hearing.”
    Upon said further hearing the court made the following order and entry:
    “This cause coming on further to be heard upon the matter of the allowance of alimony to the defendant, and upon the evidence, the court find that the defendant is entitled to alimony, and it is ordered, adjudged and decreed that the plaintiff pay to the defendant the sum of Thirty-five ($35.00) Dollars per month upon the first of each and every month, and the further sum of One Hundred ($100) Dollars to be paid to the counsel for said defendant as allowance of counsel fees herein.
    “And it is further ordered that the custody and support of the children be committed to the defendant, until further order of the court, and that the support of said children during their minority be borne by the defendant.”
    No appeal or error was taken from said continuing order.
    On the 27th of September, 1918, the former wife filed in said insolvency court certain charges of contempt for failure to obey the order of the court in the payment of alimony. This was some eight years after the order and decree of alimony were made by the court.
    In answer to the charges of contempt made by the former wife, the former husband filed an answer, challenging the jurisdiction of the court of insolvency to make such order of 1910, for the reasons that “this plaintiff [Robert C. Heflebower] had no property or estate of any kind whatever, save and except his power and ability to earn money at his profession” and that the divorce had been granted upon the aggressions of the wife.
    The defendant in error makes the following admission in his brief:
    “On the hearing [of.contempt charges] counsel for Heflebower also conceded that the allowance made to Mrs. Heflebower by the Court of Insolvency, whether considered as technical alimony, or as the award of a share in the husband’s estate, could be enforced by proceedings in contempt, and consequently that question is not before this Court.”
    The record shows that Robert C. Heflebower fully complied with the order of the court of insolvency made on September 30, 1910, up until January 1, 1917. The question therefore in this case is simply and singly, May the court having jurisdiction of the subject-matter of a cause of action, such as divorce and alimony, have its orders and decrees challenged more than six years thereafter, upon a charge of contempt duly filed, wherein it is averred that the orders and decrees of the court have not been duly observed and carried out, particularly in the matter of payment of alimony?
    
      
      Messrs. Shaffer & Williams, for plaintiff in error.
    
      Messrs. Closs & Luebbert and Messrs. Dempsey & Nieberding, for defendant in error.
    
      
       Reporter's Note — An application for a rehearing was allowed, a reargument had and, on October 18, 1921, the court adhered to its former judgment of May 24, 1921.
    
   By the Court.

The court of insolvency found in favor of the former wife on the contempt charges. On prosecution of error to the court of appeals, that court reversed upon the ground that the court of insolvency had no jurisdiction to make the order of alimony in the original case.

Clearly the original judgment for divorce and alimony has in its favor the presumption of validity. That presumption is general, and therewith is the further presumption that the court had before it proper and sufficient evidence to support its judgment.

If the trial court failed in jurisdiction, or failed by reason of incompetent or insufficient evidence, the party prejudiced might have prosecuted appeal or error to the higher court.

The defendant in error in this case not only failed to prosecute appeal or error for more than six years, but reinforced the presumption of validity by concurring in that judgment and making the payments of alimony in accordance therewith.

To all legal intents and purposes that judgment was a final and valid judgment against the defendant, unreversed and unmodified for a period of more than six years. He cannot thereafter in a proceeding in contempt for failure to continue obedience to the order raise the question of original jurisdiction to make the order, based upon what the evidence was in the original hearing on divorce and alimony.

Clearly as a matter of common sense, .common law, and common justice, he ought not, after concurring in the order for six years, be thereafter heard to complain by a collateral attack in a contempt proceeding. If he had any remedy whatsoever, it was by motion to modify the former order.

Judgment reversed.

Johnson, Wanamaker, Robinson, Jones and Matthias, JJ., concur.

Marshall, C. J., concurs in the judgment.  