THE

AMERICAN LAW REGISTER.

JANUARY 1885.

THE RIGHT TO ALIMONY AFTER DIVORCE.

In view of the state of the authorities it is very difficult to assert a general rule governing this subject, and this difficulty has been increased instead of lessened by the courts failing to separate this question from jurisdictional questions of the domicile and of the delictum, and of the effect of an ex parte decree of divorce, as well as the failure to distinguish between the doctrine of maintenance and that of alimony.

At the bottom of this question there are three propositions: 1st, a marriage valid where it is solemnized or contracted, is valid everywhere; 2d, a divorce valid where decreed, is valid everywhere; 3d, the allowance of alimony valid where made, is valid everywhere. These propositions have not been universally approved and adopted, but they are supported by the weight of authority, and have more common sense and principle for their basis than any other view.

From the adjudications two propositions are deducible; one, that alimony is only an incident of a divorce, and not a subject matter or right grantable in an independent separate proceeding where it is the only relief sought, unless the state statute so provides and makes it an independent right. It therefore follows that the court which grants the divorce can only allow the alimony; that no court, unless expressly so empowered by the statute, has power to grant alimony alone; and that if the court which decrees the divorce fails to allow alimony, or allows inadequate alimony, no other court can act in the matter-for when any matter is deter

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mined by a court of competent jurisdiction, that is the end of that matter, and all other matters belonging to and which might have been determined in that proceeding or litigation. The other proposition is the reverse of this, holding that alimony is not only an incident or concomitant of a divorce, but that it is the subject of an original jurisdiction, per se, and can be obtained in an independent proceeding, and that, too, before or after the divorce proceeding is ended, and for the same cause or causes for which the divorce was granted; that it is incident to a divorce only in the meaning that it may follow a divorce in the divorce proceedings, not necessarily attached to it, nor in the same proceeding or court, but obtainable after the divorce is granted either in a domestic or a foreign tribunal.

Referring to the first proposition, the reasoning would be that if alimony is only an incident of or to a divorce, it cannot be the subject-matter of original jurisdiction, because an incident of or to a matter is not the matter itself. If this is correct, then the court having jurisdiction of the divorce has ipso facto jurisdiction of the alimony, and it therefore follows that a court having jurisdiction to decree an ex parte divorce, can also decree alimony in that ex parte proceeding which would be an ex parte judgment for money, without jurisdiction in personam or in rem, a conclusion almost generally repudiated: Mills v. Duryee, 7 Cranch 481; Webster v. Reid, 11 How. (U. S.) 437; Nations v. Johnson, 24 Id. 195; Boswell v. Otis, 9 Id. 336; McElmoyle v. Cohen, 13 Pet. 312; 2 Am. L. Ca. 551; D'Arcy v. Ketchum, 11 How. (U. S.) 165. If the first proposition (that alimony is an incident of divorce) is correct, the court must have jurisdiction of the divorce or it cannot determine the alimony; hence it follows that to know what will constitute a valid decree for the latter, we must know what confers jurisdiction of divorce. If the second proposition is true this is not necessary, because proceedings for alimony alone would be governed by the law applicable to all proceedings for money only.

The first proposition is supported, I believe, by the weight of authority, yet the conclusions legitimately flowing therefrom are rejected, hence the question of jurisdiction in divorce is important.

It is settled that the law of the place of the actual bona fide domicile of the parties gives jurisdiction to the proper courts to decree a divorce for any cause allowed by the local law without

regard to the place of the marriage or place of the delictum: Story Confl. L., sect. 230; Harding v. Alden, 9 Greenl. 140; Tolen v. Tolen, 2 Blackf. 407; Wall v: Williamson, 8 Ala. 48; Harrison v. Harrison, 19 Id. 499; Hanover v. Turner, 14 Mass. 227; Barber v. Root, 10 Id. 260; Fellows v. Fellows, 8 N. H. 160; Pawling v. Bird, 13 Johns. 192; Maguire v. Maguire, 7 Dana 181. This means the domicile of both husband and wife.

This proposition is not disputed, but there are other propositions involved in or growing out of this which are disputed, such as whether the domicile of one of the parties is sufficient, and whether or not this domicile means the domicile at the time of the delictum. Domicile is the place where a person lives, and as applicable to marriage it is the place where both husband and wife live (Story Conf. L., sect. 41; Phill. Dom. 11; 2 Bish. M. & D. Ch. 8); their then permanent place of abode as to all present intents and purposes.

The wife's domicile is in the place where the husband lives, because the law considers husband and wife one person, and its policy is that they cohabit together: Harteau v. Harteau, 14 Pick. 181; Colvin v. Reed, 55 Penn. St. 375; Greene v. Greene, 11 Pick. 410; Hairston v. Hairston, 27 Miss. 704; Smith v. Morehead, 6 Jones Eq. 360; Williams v. Saunders, 5 Cald. 60; 2 Bish. M. & D. ch. 9. This domicile once fixed continues until changed. It can be changed by the joint removal of the domicile animus non revertendi, or by either upon the commission of the delictum against the matrimonial consortium. If the husband

commits the delictum the wife can refuse cohabitation and establish a domicile of her own, separate and independent from the husband, because if she cohabit after the delictum, it will be condonation. The misconduct of the husband gives her this right: Irby v. Wilson, 1 Dev. & Bat. Eq. 568; Stevens v. Stevens, 1 Met. 279; Davis v. Davis, 30 Ill. 180; Masten v. Masten, 15 N. H. 159; Kashaw v. Kashaw, 3 Cal. 312; Harrison v. Harrison, 20 Ala. 629; Williamson v. Parisien, 1 Johns. Ch. 389; Smith v. Smith, 4 Greene (Iowa) 266; Coddington y. Coddington, 5 C. E. Greene 263; Lyon v. Lyon, 2 Gray 367. "The wife can acquire a separate domicile whenever it is necessary and proper for her to do so. The right springs from the necessity of its exercise, and endures as long as the necessity continues. The proceedings for a divorce may be instituted where the wife has her

domicile. The place of the marriage, of the offence and the domicile of the husband are of no consequence:" Cheever v. Wilson, 9 Wall. 108; Bennett v. Bennett, Deady 299. Hence, if she has the right to establish a new domicile, she can sue in the old domicile or in the new. If she can sue in the new domicile she can obtain an ex parte decree. But some cases have held that the wife must sue in the domicile existing at the time of the delictum: Hopkins v. Hopkins, 35 N. H. 474; Schonwald v. Schonwald, 2 Jones Eq. 367; Kruse v. Kruse, 25 Mo. 68; Ashbaugh v. Ashbaugh, 17 Ill. 476. This apparent conflict will be reconciled. The same rule applies to the husband; hence, if she commits the delictum, the husband can sue in the forum of the domicile existing at the time of the offence, or establish a new domicile and sue in that new one: Warrender v. Warrender, 2 Cl. & F. 488; Chichester v. Donegal, 1 Add. Ecc. 5; Borden v. Fitch, 15 Johns. 121; Greene v. Greene, 11 Pick. 410; Hull v. Hull, 2 Strobh. Eq. 174; Hare v. Hare, 10 Tex. 355; Hood v. Hood, 11 Allen 196.

Alimony is a provision for the support or maintenance of the wife, grantable by a court and payable by the husband: Burr v. Burr, 7 Hill 207; Wallingsford v. Wallingsford, 6 Har. & J. 485; Rogers v. Vines, 6 Ired. 293. It is 1st, temporary, and 2d, permanent. Temporary when granted: 1st, pendente lite, and 2d, as a separate support or maintenance. Permanent when allowed as a permanent provision for support upon a divorce a vinculo.

The jurisdiction of our courts over the matter of alimony is derived from the English courts, or is statutory, or both.

In England, before the Cromwellian period and after the restoration until 1858, the ecclesiastical courts had exclusive jurisdiction. of divorce and alimony, and did not grant alimony but in the proceedings resulting in the divorce. During the Cromwellian period these courts did not exist. Their jurisdiction as to alimony was exercised by the judges of the chancery court but did not extend to divorces, for the reason that the then governmental policy and the express language of their commission limited the jurisdiction to causes of alimony alone: Fonb. Eq. 96, 97; Oxenden v. Oxenden, 2 Vern. 493; Head v. Head, 3 Atk. 295; Lasbrook v. Tyler, 1 Rep. Ch. 44; Ashton v. Ashton, Id. 164; Watkyns v. Watkyns, 2 Atk. 96; Duncan v. Duncan, 19 Ves. 394; Wilkes v. Wilkes,

2 Dick. 791; Nicholls v. Danvers, 2 Vern. 671; Williams v. Callow, Id. 752; 2 Bright. H. & W. 354; Shelford Mar. & Div. 598; Reeves Dom. R. 209; 2 Story Eq., sect. 1422 et seq.

The ecclesiastical courts assumed jurisdiction to decree alimony only when they decreed a separation, because 1st, from the earliest period alimony was administered as an incident to a separation, and not as an original right. 2d. It had no existence at common law or in chancery as a separate and independent right, but was recognised as an incident to a proceeding for some other purpose, such as a supplicavit or divorce, hence the ecclesiastical courts did. not assume original jurisdiction of alimony alone, but only as an incident to its divorce jurisdiction. This was in harmony with the origin and history of divorce and alimony, with the chancery court's jurisdiction and with the recognition at common law. It follows that prior to the year 1858 no court in England had any power to grant alimony when that was the only relief sought. It could only be done as an incident to something else: Head v. Head, 3 Atk. 547; Ball v. Montgomery, 2 Ves. 191. In Ball v. Montgomery the court said that "no court, not even the ecclesiastical court, has any original jurisdiction to give a wife a separate maintenance. It is always as incidental to some other matter that she becomes entitled to a separate provision. If she applies in equity upon a supplicavit for security of the peace against her husband, and it is necessary that she should live apart, as incidental to that the chancellor will allow her separate maintenance. So in the ecclesiastical court if it (alimony) is necessary upon a divorce à mensâ et thoro propter savitiam." Although the writ of supplicavit has been seldom used (2 Story's Equity Jurisprud., sects. 1422, 1423, 1476; 2 Roper Husband and Wife 309, 317, 320; Clancy M. W. 453; Codd v. Codd, 2 Johns. Ch. 141), it shows how alimony is incidental to a divorce, and in a late case (Adams v. Adams, 100 Mass. 365,) the court said that alimony alone was never granted by this process. Its purpose and object was to protect the wife from violence and abuse, and to accomplish this it was necessary sometimes to direct a separation for the time being, and separate maintenance for the wife whilst the separation continued.

This doctrine in England was admitted for the reason that granting alimony or separate maintenance, without the primary and concurrent decree of divorce, was compelling the husband to