
    Olney v. Watts.
    
      Husband and wife — Alimony—Modification of former decree — Changed circumstances of parties — Re-marriage of divorced wife — Pleading— Exhibit attached to petition without averment.
    
    1. A party to a decree for alimony may, by an original petition and suit, obtain a modification of such former decree, upon proper allegations of the changed condition and circumstances of the parties.
    2. Such allegations must not relate to circumstances and facts that existed and were, or might have been, pleaded in the former action, but to new facts, thereafter transpiring, which are of such a character as to make the modification necessary to suit such altered condition of the parties.
    3. Where alimony had been granted, in installments, to a divorced wife, and she is afterward re-married to a man financially able to, and who does, in fact, support her, these facts would prima facie be a good cause for modifying the former decree so as to reduce the amount to be paid for her support to a nominal sum, or such sum as, in the changed condition of the defendant, the court might deem just and reasonable.
    4. A transcript of a former decree attached to a petition and marked “A,” can not be considered in construing such petition and will notin any sense supply the place of direct and positive averments of the facts relied on.
    Reserved in the District Court of Putnam county.
    A petition was filed in this case in the court of common pleas of Putnam county by plaintiff against defendant, alleging that on November 4, 1863, he was married to the défendant; that two children were born as issue of the marriage ; that in October, 1882, the plaintiff filed a petition against defendant praying for a divorce by reason of three years willful absence from him without just cause; and that at the November term, 1882, of the court, a decree of divorce was granted in his favor on the ground of willful absence, but ordering the plaintiff to pay defendant alimony as follows : $80 at date of decree; $440 December 1, 1882 ; $500 June 1, 1883 ; $500 December 1,1883, and $500 June 1, 1884.
    Plaintiff' alleged that he had paid said sums of $80 and $440, being all of the alimony that had become due under the decree up to the time the petition was filed. He further alleged that defendant brought no property to him at their marriage, nor during coverture, and added nothing at any time, excepting some articles of furniture, pictures, jewelry, and clothing, all of which defendant took away when she abandoned him. That no property was accumulated by the joint -labor of plaintiff and defendant. That under a former decree of the court for alimony, plaintiff had paid defendant $1,200; that when defendant abandoned plaintiff she took with her a piano and various other articles of personal property, all of which she still keeps and uses; that in said case no order was made as to the custody of the children, and that neither of the children are dependent on defendant for support.
    Plaintiff further alleges that since granting the decree of divorce, to wit, January 11, 1888, the defendant intermarried with Amerieus V. Watts, and is now living and cohabiting with him at Ottawa, Ohio; that Watts has ample means and property to afford and- give to the defendant such support and maintenance as she, in her condition in life, has been heretofore enjoying, either as the wife of plaintiff' or otherwise, and to a fuller, and, in fact, greater extent than is provided for her in and by the decree. That defendant knew of these facts and the pecuniary condition of Watts before she married him, and “that by reason of the facts, the defendant is no longer dependent on the said alimony for her support, and the object for which the same was granted, from the property of this plaintiff, has ceased by reason of the marriage aforesaid. And the defendant, with full knowledge of all the facts has voluntarily abandoned the same and all its provisions and benefits; and this plaintiff is absolved from the farther payment of any portion of the said alimony so as aforesaid allowed, and yet remaining unpaid.”
    The plaintiff'prayed for an injunction to restrain the collection of the remaining installments of alimony, and that on final hearing the unpaid installments be set aside or modified, as the court might think proper.
    In the body of the petition, after reciting the sums allowed and ordered to be paid as alimony by the former decree, this averment follows: “A certified copy of which decree is hereto attached, marked ‘A,’ ” and a certified copy is so attached to the petition. In the certified copy so attached is a clause reading as follows:
    “VI. It is further ordered by the court, by consent of the parties, that the above-mentioned payments shall be and are in full and complete release of all claims of the said defendant, and to the property, both real and personal, of the plaintiff, from this date. And the said defendant is to execute and deliver to the said plaintiff, a quit-claim deed releasing all the interest in the real estate of the plaintiff, or in default thereof that this decree operate as such release, except that the amount of this decree shall be and is hereby made a lien on all the real estate of the said plaintiff. And the former decree of this court as to alimony is vacated and set aside.”
    There are no averments in the body of the petition that this decree was rendered on the agreement of the parties, and no evidence thereof, except by reference to the exhibit, as appears of record.
    The defendant filed a general demurrer to the petition; the common pleas sustained the demurrer, and on appeal to .the district court the cause was reserved for decision here.
    
      Sheets § Ogan, for plaintiff'.
    The court of common pleas had continuing power over the decree for alimony independently of statute or a reservation of such power in the decree itself, and had authority to modify it to correspond with the changed circumstances of the parties. ■
    The precise question has not been determined in Ohio, but it was incidentally adverted to in Petersine v. Thomas, 28 Ohio St. 596. The language of the court in that case clearly implies that where a suit has been finally determined by the granting of a divorce and alimony, a new ■’action for alimony can be maintained when the reasons for ■such additional allowance did not exist and could not have been provided for at the rendition of such finaL judgment. And if an action for an increase of alimony could be maintained, the same principle would apply for a reduction.
    The law of «divorce and alimony, as administered in the ecclesiastical courts of England, in so far as it is consistent with the spirit and genius of our institutions, is the common or unwritten law of divorce and alimony of this country. Bish. Mar. & Div (5th ed.), secs. 48, 56, 57, 66, 68, 71, 74, 75, 76, and 77.
    The ecclesiastical law is a part or branch of the common law. In Reg. v. Millis, 10 Cl. & Fin. 534, 637, Lord Chief Justice Tindal uses the phrase: “ The common law of England* of which ■ the ecclesiastical law forms a part.” In Prudam v. Phillips, 1 Harg. L. T. 456, note, it is said it was “ resolved in great debate .that the ecclesiastical law is a part of the law of the land.” Bish. Mar. & Div. (5th ed.), secs. 56, 75.
    The law of divorce and alimony is the common or unwritten law on that subject with the statute engrafted upon it. McGee v. McGee, 10 Ga. 486.
    What then is the common law on the question now under' consideration ? The ecclesiastical courts, recognizing this continuing dependence and duty, always held that their power over the subject of alimony was continuing, and, at all times, upon material changes in the circumstances of the parties, taking place after the entry of the original decree, would, on application, revise the decree to suit the changed circumstances of the parties. Cox v. Cox, 3 Add. Ec. 276; s. c., 2 Eng. Eccl. 531; Otway v. Otway, 2 Phil. Eccl. 109; Rees v. Rees, 3 Phil. Eccl. 387; s. c., 1 Eng. Eccl. 418.
    And after the “ court for divorce and’matrimonial cases ” was created, and jurisdiction over the subject of divorce and alimony, together with power to decree divorce a vinculo was granted it, that court exercised the same continuing power over the subject of alimony. Saunders v. Saunders, 1 Swab. & Tr. 72; Fisher v. Fisher, 2 Swab. & Tr. 410, 413, 414; Sidney v. Sidney, 4 Swab. & Tr. 178, 180, 182.
    The court may from time to time, on any change in the circumstances of the parties, increase or reduce the sum allotted for alimony, either temporary or permanent, independently of statutory provision or a reservation of such power in the original decree. 2 Bish. Mar. & Div. (5th ed.), sec. 428; King v. King, 38 Ohio St. 370, 372; Fisher v. Fisher, 32 Iowa, 21; McGee v. McGee, supra; Wheeler v. Wheeler, 18 Ill. 40; Rogers v. Vines, 6 Ired. 293; Lockridge. v. Lockridge, 2 B. Mon. 258; Perkins v. Perkins, 10 Mich. 425; Bauman v. Bauman, 18 Ark. 329; Bacon v. Bacon, 43 Wis. 208.
    The court may modify its -own decrees with reference to the custody of children independently of statute or reservation of such power in the decree itself. Neil v. Neil, 38 Ohio St. 558; Hoffman v. Hoffman, 15 Ohio St. 427; Campbell v. Campbell, 37 Wis. 211; Davis v. Davis, 19 Ill. 343.
    It is contended by the defendant that the decree sought to be revised was not a decree for alimony, but a decree partitioning or dividing the estate of the plaintiff between the parties. But the decree specifically provided that the sum allotted was “ as and for her reasonable alimony.”
    The agreement of the parties' as to the amount of alimony can have no effect one way or the other from the fact that the husband and wife can make no binding agreement concerning alimony. 2 Bish. Mar. & Div. (5th ed.), secs. 235, 435. Such an agreement is no barrier to a reduction of the amount upon the remarriage of the divorced wife. Albee v. Wyman, 10 Gray, 222; 2 Bish. Mar. & Div. (5th ed.), sec; 722.
    The allowance of a gross sum, unless expressly stated so to be in the judgment, is not regarded as a division or partition of the property of the husband between the parties, but must be treated as alimony proper, and under the control of the court. Hopkins v. Hopkins, 40 Wis. 466.
    The marriage of the divorced wife is sufficient ground for revoking the alimony or reducing the amount. King v. King, supra; Usher v. Fisher, supra; Albee v. Wyman, supra; Bowman v. Worthington, 24 Ark. 522, 538; Stillman v. Stillman, 99 Ill. 196; s. c., 39 Am. Rep. 21; 2 Bish. Mar. & Div. (5th ed.), sec. 479.
    
      C. J. Swan, also for plaintiff.
    The continuing power of the court to modify its decree as to children is fully recognized in Ohio, Hoffman v. Hoffman, 15 Ohio St. 427; and that too without reference to the reservation of such power in the decree. Neil v. Neil, 38 Ohio St. 558. Iu this state, all divorces being a vinculo, the granting of alimony is an order made as of the time of the divorce and based upon the estimate of the then means of the husband; but in Cox v. Cox, 20 Ohio St. 439, the doctrine is clearly recognized as to the right of the court to take into consideration accessions to the property of the husband subsequent to the divorce, and increase the original amount.
    Courts hold and exercise such continuing power over their decrees for alimony as to prevent injustice, whether the law of divorce is statutory or otherwise; and it has been frequently held that subsequent marriage is a cause for modification of decrees for alimony. Lockridge v. Lockridge, 3 Dana, 28; s. c. 28 Am. Dec. 52; Worthington v. Worthington, supra; Wheeler v. Wheeler, 18 Ill. 39; McGee v. McGee, 10 Ga. 477; Perkins v. Perkins, 10 Mich. 426; Campbell v. Campbell, 37 Wis. 206; Bish. Mar. & Div. (5th ed.), secs. 429, 471-484.
    
      T. J. Lentzy, and T. E. § W. PL. Cunningham., for defendant, commented upon .cases cited by counsel for plaintiff.
    The decree for alimony in the court of common pleas is not now subject to revision by that court. Petersine v. Thomas, 28 Ohio St. 596. And see Cov. & C. B. Co. v. Sargent, 27 Ohio St. 233.
    When we compare the American alimony with the English, and the alimony in one of our states with that in another, we should look at the entire law, statutory and unwritten, of each state and country. 2 Bish. Mar. & Div., secs. 471, 472.
    The rule in the ecclesiastical courts of England does not apply, for there the separations are only from bed and board. The parties still remain husband and wife.
    
      In Forrest v. Forrest, 25 N. Y. 501, the court refused, upon a subsequent proceeding, to hear evidence upon alleged misconduct of the wife, holding that under the statutes of New York the question of the allotment of alimony must be referred to the facts as they stood at the time the divorce was' decreed. See 2 Bish. Mar. & Div. (5th ed.) 478.
    The statutes of New York and Ohio are subtsantially alike, except that in our statute the word “alimony” is used, while in New York it is not.
    The subsequent marriage of the wife is no reason for reduction of alimony. 2 Bish. Mar. & Div. (5th ed.), sec. 479; King v. King, 38 Ohio St. 370.
    It was held in Miller v. Clark, 23 Ind. 370, that arrears of alimony decreed by a court in favor of a divorced wife, under the statute of that state, may be collected after her death by her administrator. Speaking of the statute, the court say: “The allowance so authorized is named ‘alimony;’ but it is not the alimony of the common law, the right to which ceased to exist, or reverted to the husband on the death of the wife, resulting from the fact that the marriage relation continued to exist until her death. But it is alimony under, and the creature of, the statute, given upon an equitable settlement between the parties upon the dissolution of the marriage and of all the relations of husband and wife theretofore existing between them.”
    A still sti’onger case is Fischli v. Fischli, 1 Blackf. 360, cited with approval in Petersine v. Thomas, supra.
    
    In Wisconsin the power to revise judgments in respect to alimony is found in the direct provisions of the statute. Hopkins v. Hopkins, 40 Wis. 462. The same is true of Illinois, Stillman v. Stillman, 99 Ill. 196, where the right is expressly based upon the statute. The first authority cited in Perkins v. Perkins, 10 Mich. 426, referred to by counsel for plaintiff, is the statute of that state.
    When the court of common pleas caused the decree to be entered, its power over the case was at an end. The case was adjudicated upon the facts as they stood at the time of the decree. The divorced wife, by the decree, was invested with absolute title to the property named in the decree, and it could not be forfeited, even if she were guilty of a breach of morality since (of which she is not charged), much less by her subsequent marriage which was “lawful and honorable.” Bish. Mar„ & Div. (5th ed.), sec. 483; King v. King, supra.
    
    
      There is no provision of the statutes of this state by which a decree in favor of a divorced wife can he revised in any manner different from a decree in any other form df action; and now proceedings for divorce and alimony are merely civil actions.
   Atherton, J.

The question presented by this record is: Did the petition set forth a cause of action good as against a general demurrer ?

If the decree, as to the amount of alimony to be paid the defendant, was the result of an agreement of the parties, and simply confirmed by the court, and that appeared by the direct averments of the petition, we would not say that the court erred in sustaining the demurrer. .But this nowhere appears by direct averment. If the exhibit could be looked to, as a part of the petition, perhaps it does appear, but the exhibit is no part of the pleading and does not help it out. We are therefore compelled to lay out of view, what counsel on both sides seem to concede in argument, that we should consider on this demurrer; that is what appears in the exhibit attached to the petition, but not made a part of it. Crawford v. Satterfield, 27 Ohio St. 421.

The real contention touches the right and duty of the court in a case like this to review, modify, or vacate a former decree granting alimony payable in installments by an original suit or proceeding instituted for that purpose, when such power had not been reserved by the language and form of the former decree.

It has been determined by this court that a decree for alimony is not necessarily affected by the subsequent marriage of the wife; although such a marriage may in some cases have the effect of reducing the amount. King v. King, 88 Ohio St. 870.

“ By the general doctrine, and as practiced in the country whence our laws are derived, aside, it seems, from all consideration of the form of the decree, the court may, at any time, and from time to time, on any change in the circumstances of the parties, increase or reduce the sum allotted for alimony temporary or permanent. ... In this issue, as in all others, what is once adjudged is not to be retried. Yet as the allowance is a continuous support for the wife, changed facts may require an altered decree. As observed by Ur. Lushington, ‘ where there is a material alteration of circumstances, a change in the rate of alimony may be made. If the faculties are improved, the wife’s allowance ought to be increased; and if the husband is lapsus facultatibus the wife’s allowance ought to be reduced.’ ” 2 Bish. Mar. & Div., sec. 429 ; and see also secs. 430, 478, and 479.

It is also said, in section 484: “On the other hand, also, if she behaves herself, and does what is in the highest degree commendable by becoming a wife to a second husband, receiving her support from him, this further alimony may likewise be with propriety discontinued.”

Upon the same point see also Fisher v. Fisher, 32 Iowa, 20; McGee v. McGee, 10 Ga. 486; Wheeler v. Wheeler, 18 Ill. 40; Rogers v. Vines, 6 Ired. 293; Lockridge v. Lockridge, 2 B. Mon. 258. All of which maintain the doctrine of the authority of the court to modify or vacate the former decree as to alimony as the changed condition of the parties thereto may require.

Upon these authorities and others of like tenor, as well as upon principle, we think a cause of action for the review and modification of the decree is set forth, and that the court erred in sustaining the demurrer to the petition. If, however, it shall, in the further progress of the case, appear that the former decree, instead of being in the nature of alimony payable in installments for the support of the wife, was in the nature of a permanent division of the husband’s property, and that the parties fixed the same by their own agreement, and the action of the court in the premises was simply an affirmance of the agreement by consent, this, if alleged and proved, may furnish a complete defense. As to that we express no opinion now. We are of opinion that the demurrer should be overruled, and leave given the defendant to answer, and the case be remanded to the court of common pleas for trial.

Judgment accordingly.  