Shaw v. Shaw

Kinne, J.

*725

1

*724 I. This case presents the question as to whether an allowance for temporary alimony can properly be made in a case where the existence of the marriage relation is neither admitted nor proven. As a general rule, the allowance of alimony, either temporary or permanent, is based’ upon the existence of the marital relation; and, if such relation is not admitted or established by satisfactory evidence, there can be no allowance made. McFarland v. McFar *725 land, 51 Iowa, 567 , 2 N. W. Rep, 269; York v. York, 34 Iowa, 530 ; Smith v. Smith, 61 Iowa, 140 , 15 N. W. Rep. 867 ; Blythe v. Blythe, 25 Iowa, 268 ; Wilson v. Wilson, 49 Iowa, 545 ; Schouler, Husb. & Wife, sections 551-553; 2 Bish. Mar. & Div., section 924. In this case the relation is not admitted, and unless it has been proven to exist, by satisfactory evidence, the court below erred in making the order. The question suggests itself as to whether this relation must be conclusively established, or may the court make an allowance for temporary alimony when the pleadings and other proofs adduced presumptively establish the existence of this relation? This question' has received attention from able courts, and the misstated that the court has the power, from the pleadings, affidavits, and other proofs presented to it, to pass upon the question for the purposes of the application, and is not bound by the allegations of the petition and the denials of the answer, if other proofs submitted to it make out a fair presumption of the fact of the existence of the marriage relation. Brinkley v. Brinkley, 50 N. Y. 194 ; Collins v. Collins, 71 N. Y. 273 ; Bardin v. Bardin, 56 N. W. Rep. (S. D.) 1069; Freeman v. Freeman, 23 Atl. Rep. (N. J. Ch.) 113. This rule has been applied in the following cases: Where the applicant was alleged to have had another husband living, with whom a marriage contract existed', though the applicant had reason to believe, and did believe,' that the former husband was dead; and where it was contended that though the applicant had a husband by a prior marriage living, still such marriage was void,because of incapacity of one of the contracting parties. We have found no case where the facts were like the case at bar where the rule has been applied. We discover no reason, however, why the rule should not be held applicable to the case at bar. What, then, is the situation? The existence of the marriage relation is *726 denied. The fact that it does not exist is established, prima facie at least, by the proceedings and decree of the North Dakota court. That decree, so far as this record discloses, was duly rendered. The court had jurisdiction of both the subject-matter and of the parties. There is no claim even that a copy of the summons and complaint was not served upon and received by the defendant therein in ample time for her to have made defense to the action had she seen fit so to do. No question is made as to the jurisdiction of the court over the subject-matter of the action. Its jurisdiction over the persons is denied, because it is alleged that the plaintiff therein was not a resident of the state of North Dakota, in good faith, prior to the time the decree was entered. Not apartide of proof is adduced to sustain this claim except as it is set out in the reply, which is verified. The answer, which pleaded the decree, notice, and other facts, was also verified; and therein the fact of the necess ary residence was expressly set forth. The claim of the defendant herein as to his residence in North Dakota finds support in the proceedings, findings, and decree of the Dakota court, while plaintiff’s claim in that respect has no support except in the allegations of her reply. Surely, it can not be claimed that, under such circumstances, the claimed want of jurisdiction over the parties has been made out by a fair presumption from the proofs adduced. Her sworn statement, without more, can not overcome defendant’s sworn answer and the presumptions arising from a solemn decree rendered in due form of law. Plaintiff herein also attacks the decree of the North Dakota court as having been obtained by fraud and false testimony. No evidence is adduced by her to sustain this claim except her sworn reply. That can not be held sufficient to overcome the sworn averments of the answer and the recitals of the decree. In this case, as in VanOrsdal v. VanOrsdal, 67 Iowa, 35 , *727 24 N. W. Rep. 579 , there is no sufficient evidence that the divorce was obtained by fraud or false testimony. It follows, therefore, that the North Dakota decree, so far as this proceeding is concerned, must be treated as a binding and a valid decree of divorce. Such being the case, it is manifest that the marriage relation did not exist between these parties when this suit was commenced, nor when the application was made for an allowance of temporary alimony. This court has recognized that, even in the absence of a statutory provision therefor, a marriage may be decreed void for fraud and force which induced its consummation. Wier v. Still, 31 Iowa, 110 .

2 3 The decree, then, being valid in North Dakota, until set aside or modified by proper proceedings, should also be treated as binding here, so far as this proceeding is concerned. Such being the case, this action is in the nature of a proceeding to set aside a voidable decree of divorce, and we have held that in such a case no allowance for temporary alimony can be made. McFarland v. McFarland, 51 Iowa, 567 , 2 N. W. Rep. 269 ; Wilson v. Wilson, 49 Iowa, 544 . In both of those cases we held that a decree of divorce was not void, but, at best, only voidable; and in the Wilson case it was said: “The decree of divorce which it is sought to vacate and set aside is prima facie binding upon the parties; and until, upon a hearing, it appears that it should be set aside for fraud or want of jurisdiction, the marriage relation, which is essential to support orders of this kind, does not appear to exist.” We are not deciding as to what effect the decree would have if, on a final hearing, it should appear that it was entered without jurisdiction or upon false testimony. Nor as to whether such a decree can be collaterally attacked. As to these matters, see Neff v. Beauchamp, 74 Iowa, 94 , 36 N. W. Rep. 905 . What we hold is that until the decree of the North Dakota court is modified or *728 set aside by proper proceedings, or adjudged by a competent court in this state, upon a full hearing, to be unvailable as a defense, plaintiff should not be allowed alimony pendente lite, unless such facts are established, upon the hearing on the motion for temporary alimony, as can be fairly said to presumptively show the invalidity of the North Dakota decree. Such a case, was not made in the court below. Kiefer v. Kiefer, 36 Pac. Rep. (Col. App.) 621. Not having brought herself within the rule we have laid down, plaintiff was not entitled to a decree allowing temporary alimony. For the reasons given, the cause must be reversed.