Anna Stacia Simonton, appellant in one appeal and respondent in another, both appeals being considered here together, and Rolvin D. Simonton, deceased, were married in Michigan, February 9, 1869. In November, 1893, in Kootenai county, Idaho, Rolvin D. Simonton brought suit for divorce, which was denied, and on Anna Stacia Simonton's cross-action she was awarded $15 per month for the support of herself and two minor children. In October, 1898, in Franklin county, Washington, on service by publication, Rolvin D. Simonton secured a default divorce, and in December, 1901, at Moscow, Idaho, married Sarah E. Simonton, with whom he thereafter lived until his death, December 8, 1915.
On January 11, 1917, Anna Stacia Simonton commenced the present action, now against Sarah E. Simonton, administratrix of the estate of Rolvin D. Simonton, deceased, for the delinquent maintenance money, to establish her rights as the surviving widow of Rolvin D. Simonton, to discover assets alleged to belong to the estate of Rolvin D. Simonton, and especially to recover $1,500 received by Sarah E. Simonton, August 3, 1916, from Thomas J. Travis, the purchaser of a certain lot, claimed to have been the separate property of Rolvin D. Simonton.
Sarah E. Simonton pleaded the statute of limitations in opposition to the collection of support money; that Rolvin D. Simonton's liability therefor ceased when he procured his divorce and the two minor children became of age; that *Page 756 the $1,500 was her sole and separate property, and that she is the surviving widow of Rolvin D. Simonton.
Judgment was entered in favor of Anna Stacia Simonton for $1,080 maintenance arrears and interest on each monthly instalment at $15 from January 1, 1909, on; the lower court denied her the $1,500, found that Sarah E. Simonton was the surviving widow, and awarded a portion of the costs against Anna Stacia Simonton on the theory that she did not prevail as to all relief asked by her.
Anna Stacia Simonton appealed on the grounds that she is entitled to all delinquent instalments of the support money and the $1,500 and that no costs should have been awarded against her.
Sarah E. Simonton resists, on her cross-appeal, the judgment for the support money and the awarding of any costs against her.
Anna Stacia Simonton attacks the Washington divorce decree on the ground of fraud, because the affidavit for publication of summons did not specify the exact ground upon which the divorce was sought nor state defendant's residence, and because the complaint did not state a cause of action.
Sarah E. Simonton claims the affidavit was sufficient, and if not, the presumption in favor of the regularity of a judicial proceeding presupposes another and sufficient affidavit, and furthermore that as Rolvin D. Simonton and Sarah E. Simonton cohabited as man and wife for a number of years the burden of proof was upon Anna Stacia Simonton to disprove a lawful marriage. (Smith v. Smith, 32 Ida, 478, 185 P. 67.)
"The attack upon a judgment is collateral if the action or proceeding has an independent purpose and contemplates some other relief or result than the mere setting aside of the judgment, although the setting aside of the judgment may be necessary to secure such independent purpose." (O'Neill v.Potvin, 13 Idaho 721, 93 P. 20, 257.)
The Kootenai county divorce was sought on the ground of desertion while the Washington divorce was sought and obtained on the ground of cruelty. No proof of fraud in the *Page 757 procurement of the Washington divorce was shown or alleged except that the plaintiff knew he had been denied the divorce in Idaho and that the record does not disclose that he brought that to the attention of the Washington court. This was not necessarily such fraud as would vitiate the judgment nor would the Kootenai county decree, denying the divorce, have been, if it had been or could have been set up, res adjudicata as a defense in the Washington divorce action. (Marshall v.Underwood, 38 Idaho 464, 221 P. 1105.)
The judgment-roll in the Washington case contains the decree of the court, reciting, among other things, that the default of defendant had theretofore been entered.
"To avoid a judgment, the burden is on the judgment debtor attacking it in a collateral proceeding to show that no valid service was had upon him." (McHugh v. Conner, 68 Wash. 229,122 P. 1018; Merz v. Mehner, 57 Wash. 324, 106 P. 1118.)
The Washington law authorized service by publication and mailing and the showing by Anna Stacia Simonton that she did not receive a copy of the summons was not a showing that summons was not published or mailed, hence not a sufficient showing to overthrow the judgment. (Merz v. Mehner, supra.) The affidavit is substantially in the language of the statute, secs. 4869-4897 and secs. 5716-5720, Ballinger's Ann. Codes and Statutes of Washington, vol. 2, which has evidently been held sufficient by the Washington supreme court.
"Under the statute of Washington, supra, no such order (of the court) is required. The summons is not even issued by the clerk, and no judicial determination is required before publication. When the ultimate fact is stated substantially in the language of the statute, publication may be made. This court held in De Covert v. Dolan, 7 Wash. 365, 35 P. 72,1072, at page 367, 7 Wn., and at page 73, 35 Pac., as follows: 'But the statement that the defendants reside out of the territory is the statement of a fact, and is all that need be said upon the subject. The statute does not *Page 758 make it necessary to show where the defendants resided. This is immaterial, so that they are nonresidents. . . . . The statute clearly makes the fact that the defendant resides out of the territory ground for obtaining service by publication, and upon an affidavit made to that effect the summons issued by the clerk as a matter of course; it not being necessary to obtain any order from the court or judge for that purpose, as is the case in most of the states before service by publication is authorized.'" (Goore v. Goore, 24 Wash. 139, 143,63 P. 1092, at 1094; Dorian v. Dorian, 101 Okl. 9, 222 P. 676.)
Sec. 5716, Ballinger's Codes and Statutes of Washington, subdivisions 5 and 7, second paragraph, provides a divorce may be granted for:
"5. Cruel treatment of either party by the other, or personal indignities rendering life burdensome; . . . .
"7. . . . . And a divorce may be granted upon application of either party for any other cause deemed by the court sufficient, and the court shall be satisfied that the parties can no longer live together; . . . ."
The complaint further alleges:
"The plaintiff further alleges that he has not lived with defendant since July, 1885, that for several years previous to this time, this plaintiff was almost constantly subjected to cruel treatment, and personal indignities were inflicted upon him almost daily by the defendant rendering his life so burdensome that he was compelled to leave; but before so doing turned all his property, some $3,000, over to the defendant.
"The plaintiff further avers that he and the defendant can never live together as husband and wife."
These allegations were sufficient. (Colvin v. Colvin,15 Wash. 490, 46 P. 1029.)
It is contended by Sarah E. Simonton that the instalments of separate maintenance, awarded by the Idaho court, falling due after the date of the divorce decree rendered by the Washington court cannot be recovered, because the marital status as the basis of the order for separate maintenance *Page 759 was terminated by the divorce decree. The order for separate maintenance of the first wife and children was an obligation arising out of the relation of marriage between the parties, dependent upon the continuance of the marital relation only as to the maintenance of the wife.
Alimony is dependent either upon the pendency of a divorce action or the severance of the marriage relation. Separate maintenance depends upon the continuation of the marriage relation and is for the support of the wife while the marriage relation continues and the spouses live separate and apart. The purpose of both allowances is the same, namely, the support of the wife; if the marriage continues, it is an enforcement of the husband's obligation to care for his wife; if a divorce has been granted the continuation of the obligation is in the nature of a penalty because of the husband's violation of the marital vows, and as to the wife, prior to her remarriage if divorced, no legal difference distinguishes the necessity for such allowance.
The cases, therefore, which pass upon the awarding and enforcement of alimony in an action subsequent to that in which a divorce had been previously granted, such as Spradling v.Spradling, 74 Okl. 276, 181 P. 148, Adams v. Abbott, 21 Wash. 29,56 P. 931, Cook v. Cook, 56 Wis. 195, 14 N.W. 33,Thurston v. Thurston, 58 Minn. 279, 59 N.W. 1017, and Toncrayv. Toncray, 123 Tenn. 476, Ann. Cas. 1912C, 284, 131 S.W. 977, 34 L.R.A., N.S., 1106, are not in point.
When this case was previously before the court (Simonton v.Simonton, 33 Idaho 255, 193 P. 386) the court held that where a decree for separate maintenance, which might have been modified, was not modified prior to the husband's death, it may be enforced against his estate as to the instalments which fell due prior to his death, expressly providing that such decree, when so sued on, would be subject to any defense which might be available and properly set up in the answer. From the transcript in that appeal it appears that the only question involved was the sufficiency of the complaint on demurrer. *Page 760 Evans v. Evans, 116 Wash. 460,199 P. 764, cites 19 C. J. 360, to the proposition that after children come of age their allowance under a divorce decree for the joint maintenance of children and mother ceased as to the children. Of the cases cited in the text, Snover v. Snover, 13 N.J. Eq. 261, and Youngv. Young, 179 Iowa, 1259, 162 N.W. 617, hold that the liability for support of the children by the father ceases when they reach majority. Boehler v. Boehler, 125 Wis. 627, 104 N.W. 840, holds that the court could not enter a decree for support of the children after their majority.
In the Evans case the court states that before the wife could enforce such joint decree providing support for her, after the children became of age, she must prove the sum that was intended for her separate maintenance and support, and unless she had the decree so modified, she would be entitled to nothing. The cases cited in the text, as relied upon, do not, however, directly support such proposition.
The court in the Evans case has to our minds confused the duty of having the decree modified and its actual modification. Not having been modified it was a valid decree, and until so modified it is binding according to its terms, to wit, to pay the wife $15 a month. To say that because it could have been modified and therefore it will not be enforced does more violence than to say that being otherwise valid it will be enforced until modified.
The precise question involved herein is as follows: Where a wife has secured, on personal service, a judgment for separate maintenance in the courts of one state and later the husband goes into a different state and on substituted service secures a divorce and later the husband dies and the wife sues his estate for the unpaid delinquent instalments provided for in the separate maintenance decree, where no modification was had by the husband during his lifetime of the separate maintenance decree, and the divorce action made no provision for the support of the wife, is the divorce decree an absolute bar to the enforcement of the separate maintenance instalments against the deceased husband's estate, *Page 761 on the ground that the dissolution of the marital relation, as the necessary basis and support of separate maintenance, having been effected by the divorce, without court modification,ipso facto ended or rendered unenforceable the separate maintenance decree?
Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227, under a similar state of facts with reference to the operation and effect of a subsequent divorce decree in one state upon a prior separate maintenance decree in another state, held that the payment of the instalments of separate maintenance could be enforced up to the date of the divorce decree, but inferentially held that instalments falling due after that date could not be enforced, saying:
"We are of the opinion that both decrees may stand, so far as in their results they are not incompatible with each other. The subject matter and object of each are wholly different. The first seeks to enforce the obligations and duties springing out of the relation of marriage; the second, entirely to annul that relation, and having effected the contemplated object puts a period to the operation of the first, which is necessarily dependent upon that relation."
Stating further that the divorce decree as effectually put an end to the relation of marriage as the death of either of the parties, concluding as a consequence that all duties and obligations necessarily depending upon the continuation of that relation immediately ceased. This case has been followed inMcCullough v. McCullough, 203 Mich. 288, 168 N.W. 929.
In the case of Gibson v. Gibson, 81 Misc. Rep. 508, 143 N.Y. Supp. 37, the court had under consideration the following situation: In 1910 the plaintiff wife obtained in New York state a judgment for separate maintenance and thereafter she recovered in Ohio a decree of absolute divorce and the defendant failing to pay the separate maintenance allowance after the Ohio divorce, a motion was made in New York to punish him for contempt, whereupon the defendant contended that the granting of the absolute divorce in Ohio relieved him from paying the separate maintenance and the *Page 762 court stated that the proper practice required that he move for a modification of the separate maintenance decree before he could be relieved from its enforcement, the court saying:
"The direction for the payment of alimony in an action for a judicial separation proceeds upon a different theory than provisions for alimony in cases of absolute divorce. In the latter class of cases the marriage is dissolved, and the judgment for alimony in such cases is rather in the nature of a penalty imposed upon the guilty party for a violation of his marriage vows and obligations. Alimony in such cases is rather a substitute for the rights of the innocent wife which the divorce cuts off and forbids in the future. This distinction has been pointed out in numerous cases. (Wilson v. Hinman,182 N.Y. 408, 108 Am. St. 820, 75 N.E. 236, 2 L.R.A., N.S., 232;Estate of Ensign, 103 N.Y. 284, 57 Am. St. 717, 8 N.E. 544.)
"In cases of divorce, the obligation to pay alimony terminates on the death of the husband. (Johns v. Johns,44 A.D. 533, 60 N.Y. Supp. 865; Barnes v. Klug, 129 A.D. 192,113 N.Y. Supp. 325.)
"The plaintiff in this action has seen fit to become a resident of the state of Ohio, and to invoke the jurisdiction of the courts of that state, and obtain an absolute divorce from the defendant. This divorce, we have seen, she is estopped from questioning, and it, in effect, has terminated the marriage relation between herself and the plaintiff, upon which the provision of the decree for the payment of alimony was predicated. In legal contemplation, the Ohio decree was just as effective to terminate the marriage relation as the death of the defendant would have been. Having elected to terminate that relation by proceedings in the Ohio courts, we do not think the plaintiff can insist that she still has the right to enjoy the benefits flowing from that relationship, and it follows that the judgment directing the payment of alimony should therefore be modified as asked.
"In Burton v. Burton, 150 A.D. 790, 135 N.Y. Supp. 248, the defendant had obtained a decree of judicial separation. Subsequently the defendant in that action brought an *Page 763 action for an absolute divorce against his wife on the ground of adultery, and succeeded in his action. The court held that the court had the right and power by its judgment of divorce to provide that the plaintiff should be relieved from the obligation to pay further alimony by virtue of the decree of separation, upon the ground and for the reason that the marriage relation was terminated, which was the basis of the provision for alimony in the judgment for separation."
The above case, therefore, is authority merely for the proposition that where a subsequent divorce decree has been obtained by the wife, the defendant, upon proper motion, may be relieved from the obligation of a prior separate maintenance decree, but does not pass upon the question, except inferentially, of whether or not the prior separate maintenance decree, if not modified, would have been enforceable after his death.
It may be conceded that after the husband's death no modification of the separate maintenance decree would be necessary, and since in the Gibson case, supra, it is stated that the proper practice required him to move for a modification of the separate maintenance decree, the logical conclusion to be drawn therefrom is that without such modification the separate maintenance decree would have remained enforceable even though the marriage relation had been terminated.
Burton v. Burton, 150 A.D. 790, 135 N.Y. Supp. 248, quoted in Gibson v. Gibson, supra, would seem to be in conflict with Harrison v. Harrison, supra, since in Burton v. Burton the court held that a subsequent action for absolute divorce could not indirectly modify an existing judgment for separation, presumably in full force, although under the subsequent decree the husband could apply directly for a modification of the provisions of the prior judgment for separate maintenance, thus implying at least that until such direct modification was secured the prior judgment would remain in full force and effect, and having become, as to each instalment, a final judgment and having been unmodified, *Page 764 was enforceable as a debt, though the status upon which the decree rested was changed.
Even though the marital relation had been dissolved because of the granting of the divorce, and the children had come of age, there is no positive assurance thereby that if an action had been brought directly for the modification of the separate maintenance decree relief would have been granted, or if granted, would have been granted without imposing conditions upon the husband. In other words, upon application to a court of equity for a modification of the separate maintenance decree the court would, or at least could, have required that equity be done before equity would have been accorded, by insisting that the husband pay the back instalments as was indicated inRichards v. Richards, 87 Misc. Rep. 134, 149 N.Y. Supp. 1028.
In Barber v. Barber, 21 How. 582, 16 L. ed. 226, a wife had secured in New York state a decree for maintenance under a divorce mensa et thoro. Later the husband went to Wisconsin and there applied for a divorce a vinculo and the wife sued in the federal court to enforce the maintenance portion of the New York decree. The main issue before the court apparently was the right of the wife to bring the action, although the court in the course of the opinion stated:
"It [meaning the Wisconsin decree] certainly has no effect to release the defendant there and everywhere else from his liability to the decree made against him in the state of New York."
It is conceded that the Idaho court at the time it gave the decree of separate maintenance had jurisdiction of the parties and the subject matter, consequently the present claim of the administratrix, that the Idaho decree is without force because of the Washington decree, is a collateral attack and subject to the same rule as applied in the instant case to the attack by Anna Stacia Simonton upon the Washington decree of divorce. (Emery v. Emery, 104 Kan. 679, 180 P. 451.) *Page 765
In Gilbert v. Hayward, 37 R.I. 303, 92 A. 625, upon an action for divorce from bed and board the wife was allowed separate maintenance for the support of herself and her then minor daughter until further order of the court, and while the word "alimony" was used in the original decree the opinion shows that in fact it was separate maintenance, granted upon the continuation of the marriage relation, as distinguished from alimony granted upon the severance of the marriage relation. The decree was not modified and no payment made for a long time prior to the death of the husband, after which time the wife sued his estate to collect the arrears, which arrears within the statute of limitations were allowed. In opposition thereto it was urged that after the daughter came of age the judgment ceased to have any force or effect. After reviewing numerous cases the court says:
"The fourth exception alleges a change of circumstances of the parties to the divorce in that the minor child named in the decree, the present appellant, became of age many years ago, and was to some extent supported by her father during her minority; and, second, that Annie F. Hayward was allowed, after the decree of separation, to engage in the business as a trader and take the profits of the business. As to the first point, the ceasing by the mother to provide for the daughter and the latter's becoming of age furnished ground for an application by the husband to modify the decree. It is impossible to know whether or not the decree would have been modified on such an application. The weekly allowance was so moderate it cannot be positively assumed that under the conditions ten years later this sum would be any more than the court would then have allowed the wife for her own support. But the decree was not modified, and no application for modification was ever made. It is needless to say that even a good ground therefor does not,ipso facto, effect the modification of a decree. (See McIlroyv. McIlroy, supra, 208 Mass. 463, 464, Ann. Cas. 1912A, 934,94 N.E. 696.) But, furthermore, this is a proceeding at law to enforce a decree. The decree is not the subject of attack collaterally, except on the question of the *Page 766 jurisdiction of the court making the decree for alimony, which question is not raised here."
The above case, therefore, seems to lay down the rule that in absence of modification, even though good ground for modification may have existed, the judgment will continue in full force and effect. It does not appear that Gilbert v.Hayward considered the case of Harrison v. Harrison, supra, and they seem in direct conflict with each other.
Since this question is one of first impression in this court and there does not appear to have been a prior complete determination of the particular point involved herein, and in view of the reason for the allowance of separate maintenance or alimony and of the holdings in the above courts, we are justified in laying down the law to be that in this case, where a wife secured a decree for separate maintenance upon personal service and the husband later in another jurisdiction without bringing the former decree to the attention of the latter court, on substituted service secured a divorce, and never paid the maintenance decree or any portion thereof, the decree for separate maintenance will continue in full force and effect until directly modified, and where the former husband dies before such modification, the past due and unpaid instalments of separate maintenance falling due within the period of the statute of limitations and up to the time of his death may be enforced by the former wife against the former husband's estate.
The amount in the Idaho decree being in a lump sum, even though the wife was divorced, did not, prior to its modification, deprive such decree of its enforceability as a whole.
To hold otherwise would in effect be allowing Rolvin D. Simonton to have indirectly, through the Washington decree, had the Idaho decree modified in a manner and under service which would not have been sufficient to enable him to have directly had the Idaho decree modified. The Idaho decree did not affect the status of the parties and the Washington decree in no way affected the res of the property nor did it affect the status or res of the obligation resting on *Page 767 Rolvin D. Simonton to continue, under the Idaho decree, the support of his then minor children.
Rolvin D. Simonton's divorce being valid, the marriage of Rolvin D. Simonton and Sarah E. Simonton is valid and Anna Stacia Simonton is not the surviving widow of Rolvin D. Simonton. The evidence is amply sufficient to sustain the court's finding that the $1,500 in question was the sole and separate property of Sarah E. Simonton and that Rolvin D. Simonton never had any interest therein, and that Anna Stacia Simonton is therefore not entitled to any portion of it.
Anna Stacia Simonton recovered a money judgment in the lower court for more than $100 and therefore was entitled to her costs. (C. S., sec. 7207.)
The judgment of the trial court is therefore sustained except as to the awarding of costs in the lower court, and it is reversed as to that portion of the decree, and since it appears that all the questions raised by Sarah E. Simonton, administratrix, could have been presented on the appeal taken by Anna Stacia Simonton, each party will pay their costs in this court, and it is so ordered.
Wm. E. Leo and Budge, JJ., concur.