Plaintiff and defendant intermarried in Ohio in 1935. Both parties, at that time, were students at the University of Michigan, where plaintiff was taking graduate work in architecture. Plaintiff is a native Oregonian, and, until 1946, had always claimed Oregon as his domicil. Leaving Michigan, they spent some time in Arizona and in southern California, and finally came to Oregon, where plaintiff abandoned architecture in favor of medicine as a career. He studied medicine at the medical school of the University of Oregon, and was graduated therefrom with the degree of M.D. in December, 1943.
On May 17, 1943, Dr. Rodda filed suit for divorce against Mrs. Rodda, in Multnomah County, Oregon. His amended complaint charged her with numerous specifications of cruel and inhuman treatment. Mrs. Rodda answered the complaint by general denial, and, as a counterclaim, prayed for a decree of separation and maintenance, under the provisions of chapter 408, Or. L., 1941, alleging as grounds therefor that plaintiff had himself been guilty of specified cruel and inhuman treatment toward her, had failed to provide her with adequate food and clothing, and had been unfaithful to her.
On March 17, 1945, after a hearing in which both parties participated, the court made general findings *Page 163 in favor of the defendant, Mrs. Rodda, and against the plaintiff, and awarded her a decree of separation from bed and board for an unlimited period of time, with an allowance of $100 a month for maintenance.
On May 16, 1946, Dr. Rodda brought suit for divorce in the District Court of the State of Nevada for the Second Judicial District, Washoe County, upon the ground that, for the three consecutive years immediately preceding, he and his wife had lived separate and apart without cohabitation. (Sec. 9467.06, Nev. Comp. L., 1929, as amended by chapter 23, Statutes of Nevada, 1939.) Substitute service only was had upon Mrs. Rodda, and, on the advice of counsel, she made no appearance. There was an ex parte hearing, and the Nevada court, on June 19, 1946, entered a decree of divorce as prayed for.
On December 13, 1946, Dr. Rodda filed in the Circuit Court for Multnomah County, Oregon, his motion to vacate, as of the date of the Nevada decree, that part of the Oregon decree which required him to pay Mrs. Rodda $100 a month for her maintenance. In response to an order to show cause why the motion should not be allowed, Mrs. Rodda, inter alia, pleaded the decree of separation and maintenance. After a hearing, the court, on July 10, 1947, entered its decree vacating the decree of separate maintenance as of June 19, 1946, the date of the Nevada decree. From this order Mrs. Rodda has appealed to this court.
Consideration of what recognition must be given to the Nevada decree by our courts involves a federal question under the full faith and credit clause of the Constitution of the United States (Art. IV, section 1). The decisions of the Supreme Court of the United States interpreting the full faith and credit clause are controlling. DeVall v. DeVall, (1910) 57 Or. 128, *Page 164 109 P. 755, 110 P. 705; Williams v. North Carolina, (1942)317 U.S. 287, 298, 87 L.ed. 279, 63 S. Ct. 207, 143 A.L.R. 1273; Williamsv. North Carolina, (1945) 325 U.S. 226, 231, 89 L.ed. 1577,65 S. Ct. 1092, 157 A.L.R. 1366; 3 Nelson, Divorce and Annulment, 2 ed., section 33.24.
In Haddock v. Haddock, (1906) 201 U.S. 562, 50 L.ed. 867,26 S. Ct. 525, 5 Ann. Cas. 1, the facts were as follows: A husband and wife had been domiciled in the State of New York. The husband deserted the wife and, after a lapse of years, acquired, in good faith, a domicil in Connecticut. The wife remained in New York. In Connecticut, the husband procured a decree of divorce, based upon constructive service of process only. The wife afterward brought suit in New York for separation from bed and board and for alimony, and obtained personal service upon the husband in that state. He pleaded the Connecticut decree. It was held that that decree, not being based upon personal service, was not entitled to obligatory enforcement in the State of New York under the full faith and credit clause of the federal constitution. The court was of the opinion that a suit for divorce, brought in a state other than that of the matrimonial domicil against the wife who remained in the matrimonial domicil, was not a proceeding inrem justifying the court to enter a decree affecting the res, or marriage relation, entitled to be enforced outside of the territorial jurisdiction of the court. The doctrine thus enunciated was followed by the courts for more than thirty-five years. Toncray v. Toncray, (1910) 123 Tenn. 476, 131 S.W. 977, 34 L.R.A.N.S., 1106; Hicks v. Hicks, (1912) 69 Wash. 627,125 P. 945; Bennett v. Tomlinson, (1928) 206 Iowa 1075,221 N.W. 837; Lednum v. Lednum, (1929) 85 Colo. 364, 276 P. 674;Larrick v. Larrick, *Page 165 (1930) 39 Ohio App. 363, 177 N.E. 642; Sheridan v. Sheridan, (1942) 213 Minn. 24, 4 N.W.2d 785. The Haddock case was specifically overruled in the first Williams case, supra (317 U.S. 287). That case, however, did not involve the question of obligatory recognition of a foreign-state decree of divorce based upon substituted service, when such decree is sought to be relied upon as absolving the husband from his duty to pay alimony adjudged against him in a prior suit for separate maintenance in the wife's home state, based upon personal service. It would seem, therefore, that the court's statement in Williams v. NorthCarolina, supra (317 U.S. 287) that "Haddock v. Haddock is overruled", should be regarded as being limited within the scope of that decision, and not as implying a sweeping overruling of the whole of Haddock v. Haddock.
I agree with the majority opinion that Dr. Rodda established a bona fide domicil in Nevada, and that the Nevada court had jurisdiction of his suit to dissolve the marriage.
The most recent decision of the federal Supreme Court upon the impact of the full faith and credit clause on the situation in the instant case is Estin v. Estin, (1948) 334 U.S. 541. The controversy which the opinion in that case terminated arose in the State of New York. The plaintiff wife, in 1943, was awarded a judgment of permanent separation from bed and board, with alimony. The husband had entered a general appearance in the cause. Some two years later, on constructive service upon the wife, the husband obtained a decree of divorce in Nevada. He thereupon ceased paying alimony under the New York judgment, and in due course the wife brought an action for the amount thereof accrued and unpaid. The husband appeared in the action, and, based upon the Nevada *Page 166 decree of divorce, moved to vacate the alimony provisions of the separation judgment. The wife had judgment in the lower court (Estin v. Estin, (1946) 63 N.Y.S.2d 476, aff. without opinion,271 A.D. 829, 66 N.Y.S.2d 421). On appeal, the Court of Appeals affirmed, holding that, while, under the full faith and credit clause, the Nevada decree was entitled to recognition by New York as dissolving the marriage, it did not have the effect of terminating the liability of the husband for alimony under the prior New York judgment. I quote from the opinion:
"We have then this situation: The full faith and credit clause commands us to accord recognition to so much of the Nevada decree as pronounced the dissolution of the marriage; and the only remaining question is whether the Nevada decree must also be taken to have cancelled the alimony provision made for the wife through the prior judgment in this New York separation action.
"A divorce decree (whether foreign or domestic) granted by a court having jurisdiction of the persons of both parties may very well be held to override any incongruous alimony provision of an earlier domestic judgment of separation. See Scheinwald v. Scheinwald, 231 A.D. 757, 246 N.Y.S. 33; Richards v. Richards, 87 Misc. 134, 149 N.Y.S. 1028; affirmed 167 A.D. 922, 152 N.Y.S. 1140; Holmes v. Holmes, 81 U.S. App. D.C. 132, 155 F.2d 737, 166 A.L.R. 1000. But the res judicata principle of the cases just cited — that as between two conflicting adjudications the last must control — has no application where, as in the present case, the court which granted the last judgment was without jurisdiction of the person of the defendant. Cf. Miller v. Miller, 200 Iowa 1193, 206 N.W. 262; Wagster v. Wagster, 193 Ark. 902, 103 S.W.2d 638; 2 Freeman on Judgments, 5th ed., § 629. * * *"
Estin v. Estin, (1947) 296 N.Y. 308, *Page 167 73 N.E.2d 113, 114, affirmed Estin v. Estin, (1948) supra (334 U.S. 541, 92 L.ed. 1078, 1082, 1083, 68 S. Ct. 1213, 1 A.L.R. 1412.)
When the case reached the Supreme Court of the United States, it was affirmed (by a divided court, Justices Frankfurter and Jackson dissenting). The effect of the decision is that, while a decree of divorce of a sister state, based upon constructive service, is entitled to full faith and credit as a dissolution of the marriage, it does not terminate the wife's right to separate maintenance under a previous decree in the state of the matrimonial domicil, unless, by the law of the latter state, the separation decree does not survive the decree of divorce. I quote from the opinion:
"* * * In this case New York evinced a concern with this broken marriage when both parties were domiciled in New York and before Nevada had any concern with it. New York was rightly concerned lest the abandoned spouse be left impoverished and perhaps become a public charge. The problem of her livelihood and support is plainly a matter in which her community had a legitimate interest. The New York court, having jurisdiction over both parties, undertook to protect her by granting her a judgment of permanent alimony. Nevada, however, apparently follows the rule that dissolution of the marriage puts an end to a support order. See Herrick v. Herrick, 55 Nev. 59, 68, 25 P.2d 378, 380. But the question is whether Nevada could under any circumstances adjudicate rights of respondent under the New York judgment when she was not personally served or did not appear in the proceeding.
"Bassett v. Bassett, 141 F.2d 954, held that Nevada could not. We agree with that view.
"* * * The Nevada decree that is said to wipe out respondent's claim for alimony under the New York judgment is nothing less than an attempt by Nevada to restrain respondent from asserting her *Page 168 claim under that judgment. That is an attempt to exercise an in personam jurisdiction over a person not before the court. That may not be done. Since Nevada had no power to adjudicate respondent's rights in the New York judgment, New York need not give full faith and credit to that phase of Nevada's judgment. A judgment of a court having no jurisdiction to render it is not entitled to the full faith and credit which the Constitution and statute of the United States demand. Hansberry v. Lee, 311 U.S. 32, 40, 41 (85 L.ed. 22, 26, 27, 61 S. Ct. 115, 132 A.L.R. 741); Williams v. North Carolina, 325 U.S. 226, 229, (89 L.ed. 1577, 1581, 65 S. Ct. 1092, 157 A.L.R. 1366), and cases cited.
"The result in this situation is to make the divorce divisible — to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern." (Emphasis supplied.) Estin v. Estin, supra (334 U.S. 541, 92 L.ed. 1078, 1082, 1083.)
In the Bassett case, above mentioned, the facts were: William and Margaret Bassett, husband and wife, were domiciled in the State of New York. William left New York and established his domicil in Nevada. Thereafter, Margaret sued in New York for separate maintenance, and secured a judgment therefor, payable in monthly installments. Subsequently, she obtained two several judgments in the New York court for unpaid installments. William thereafter obtained a decree of absolute divorce in Nevada, upon substituted service on Margaret, who made no appearance in the suit. Margaret then brought an action upon her New York judgments in the District Court of the United States for the District of Nevada. William pleaded the Nevada divorce decree as a bar. The District *Page 169 Court sustained the defense and dismissed the action. On appeal, the Circuit Court of Appeals reversed. In so doing, it based its decision mainly upon its earlier decision in Durlacher v.Durlacher, 9 Cir., 123 F.2d 70, in which, under substantially identical facts, it had held that a valid judgment of the New York court could not be set aside or affected by a judgment of a court of another state. Counsel, in the Bassett case, argued thatDurlacher v. Durlacher was decided upon the theory of Haddockv. Haddock, supra (201 U.S. 562); that the Haddock case was reversed by Williams v. North Carolina, supra (317 U.S. 287); and, therefore, that Durlacher v. Durlacher was no longer an authoritative precedent. In disposing of this contention, the court said that the New York court had acquired jurisdiction over both parties in the original separate maintenance action, and, according to New York law, retained jurisdiction throughout the proceedings leading to the two judgments for accrued installments thereunder; that, in those proceedings, William could have appeared and pleaded any defense he might have had, but failed to do so, and that, if he had appeared and unsuccessfully asserted his defenses, if any, his recourse would have been in the appellate courts of New York and the Supreme Court of the United States. Concluding, the court said:
"As here presented we are asked to accept the decree of a Nevada State Court which, in effect, attempts to set aside decrees or judgments of a court of New York. This is the point in this appeal, and Williams v. North Carolina, supra, has absolutely nothing to do with it."
In the case at bar, the award of alimony to Mrs. Rodda was made under authority of the state statute providing that, upon certain stated grounds, either *Page 170 spouse may have a decree of separation from bed and board, with (among other relief) an award of alimony against the party in fault. Chapter 408, Or. L., 1941. The statute makes each installment of such alimony, as it accrues, a final judgment, and provides that the court shall have power, upon motion of either party, to set aside, alter or modify so much of the decree as may provide, inter alia, for the maintenance of the other party. The Oregon court, therefore, retained jurisdiction over the parties. Its decree, denying the divorce which Dr. Rodda prayed for and allowing Mrs. Rodda's prayer for separation and maintenance, was conclusive as to the adjudicated rights of the parties and a bar to any subsequent suit upon the same matters. 30 Am. Jur., Judgments, section 172; 27 C.J.S., Divorce, section 326; Faistv. Faist, (1934) 147 Or. 623, 628, 34 P.2d 937; Kelley v.Kelley, (1948) Or., 191 P.2d 656, 659.
The inquiry, in my opinion, involves the question of whether or not, under the law of Oregon, the Oregon decree of separate maintenance was terminated ipso facto by the Nevada decree of absolute divorce. There is nothing in the separate maintenance statute itself (ch. 408, Laws, 1941) to indicate that the legislature intended or contemplated that the latter decree should have such an effect. Dr. Rodda has made no showing of any change in conditions affecting his liability for alimony, occurring since the entry of the separate-maintenance decree, other than the entry of the Nevada decree.
"Alimony is the allowance which the husband is compelled to pay for his wife's maintenance while she is living apart from him, or after she has been divorced. * * * It is founded upon the marital obligation to support and maintain, and is awarded by the court in *Page 171 enforcement of this obligation and duty." Keezer, Marriage and Divorce, 2 ed., section 660; Warrington v. Warrington, 160 Or. 77,80, 83 P.2d 479; 27 C.J.S., Divorce, section 202c. Under our law, a divorce may be awarded either with or without alimony, and, conversely, alimony, or separate maintenance, may be awarded without divorce. There is, therefore, no "necessary connection between divorce and alimony". Toncray v. Toncray, supra (1910 —123 Tenn. 476, 131 S.W. 977, 34 L.R.A. (N.S.) 1106, 1109). The right to alimony, being founded upon the duty of the husband to support the wife, and being unaffected by the foreign ex parte decree of divorce, may, in my opinion, survive that decree.
There is respectable authority, apart from Estin v. Estin, supra, for the proposition that a decree of absolute divorce is not a mandatory ground for termination of a prior award of separate maintenance. See Anno., 166 A.L.R. 1004, 1018, and cases cited.
In Esenwein v. Commonwealth, (1945) 325 U.S. 279,89 L.ed. 1608, 65 S. Ct. 1118, 157 A.L.R. 1396, Mr. Justice Douglas, in a specially concurring opinion, foreshadowed the later decision inEstin v. Estin, supra, in the following language:
"* * * it is not apparent that the spouse who obtained the decree can defeat an action for maintenance or support in another State by showing that he was domiciled in the State which awarded him the divorce decree. It is one thing if the spouse from whom the decree of divorce is obtained appears or is personally served. See Yarborough v. Yarborough, 290 U.S. 202, 90 A.L.R. 924; Davis v. Davis, 305 U.S. 32, 118 A.L.R. 1518. But I am not convinced that in absence of an appearance or personal service the decree need be given full faith and credit when it comes to maintenance or support of *Page 172 the other spouse or the children. See Pennoyer v. Neff, 95 U.S. 714. The problem under the full faith and credit clause is to accommodate as fully as possible the conflicting interests of the two States. See Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 447 (dissenting opinion). The question of marital capacity will often raise an irreconcilable conflict between the policies of the two States. See Williams v. North Carolina, supra. One must give way in the larger interest of the federal union. But the same conflict is not necessarily present when it comes to maintenance or support. The State where the deserted wife is domiciled has a deep concern in the welfare of the family deserted by the head of the household. If he is required to support his former wife, he is not made a bigamist and the offspring of his second marriage are not bastardized. In that view Pennsylvania in this case might refuse to alter its former order of support or might enlarge it, even though Nevada in which the other spouse was domiciled and obtained his divorce made a different provision for support or none at all. See Radin, The Authenticated Full Faith and Credit Clause, 39 Ill. L. Rev. 1, 28."
The separate-maintenance decree herein was granted at a time when the parties were husband and wife. If the rule of Haddockv. Haddock, supra, were still in force, Oregon would no doubt decline to recognize or to give effect to the Nevada divorce decree, to any extent whatever. By the Supreme Court's present interpretation of the Fourth Amendment, however, we are compelled to recognize the Nevada decree as dissolving the marriage, but we are not obliged to recognize the "divorcing effect" of such decree to be sufficient to cut off the wife's right to separate maintenance under the prior decree. It is true that the Nevada decree has given to Dr. Rodda the status of an unmarried man to the extent that he may lawfully contract a *Page 173 second marriage, but I am of the opinion that sufficient of the doctrine of Haddock v. Haddock remains to permit the Oregon court to refuse recognition to that decree as terminating the decree of separate maintenance. Distinguished legal scholars have not hesitated to say that the divorced wife, in such a situation, may be regarded by the state of her domicil, for the purpose of receiving separate maintenance under the previous decree, as if she were still "the wife". See Bingham, In the Matter of Haddock v. Haddock, 21 Cornell Law Quar., 393, 420; Cf., Radin, The Authenticated Full Faith and Credit Clause; Its History, 39 Ill. L. Rev., 1, 28.
"It is not essential to the allowance of alimony that the marriage relation should subsist up to the time it is allowed. On appeal, alimony may be decreed by the district court, notwithstanding the subsisting divorce pronounced by the court of common pleas. It is true the statute speaks of the allowance as being made to the wife. But the term `wife' may be regarded as used to designate the person, and not the actual existing relation; or the petitioner may still be regarded as holding the relation of wife for the purpose of enforcing her claim to alimony."
Cox v. Cox, 19 Ohio St. 502, 2 Am. Rep. 415, 417.
In Bragg v. Bragg, (1925) Prob. (Eng.) 20 — Div. Ct., a wife had obtained an order, under a summary jurisdiction act, (Summary Jurisdiction — Married Women — Act, 1895) whereby her husband was declared to have deserted her and was ordered to pay her a certain sum weekly for the maintenance of herself and their children. Three years later the wife obtained a decree nisi for a dissolution of the marriage, which decree made no provision for maintenance of herself or children. The decree was afterward made absolute. It was held that the divorce decree and the termination *Page 174 thereby of the marriage status of the parties did not, in and of itself, terminate the prior order for maintenance, and that, before the husband could be relieved from liability under the order for maintenance, he would be required to satisfy the court that justice required that he be so relieved. The portion of the act under which the order was authorized read as follows:
"* * * [The order may contain] (3) A provision that the husband shall pay to the wife personally * * * such weekly sum * * * as the court, having regard to the means of the husband and wife, considers reasonable * * *."
The court, apparently, was not troubled by any legalistic notion that the divorce decree divested the support order of the basis, in the marital status of the parties, upon which it was founded.
Similarly, the New York statute upon which the separate-maintenance decree in Estin v. Estin, supra, was granted, provides as follows:
"Where an action for separation from bed and board is brought by the wife, the court, in the final judgment of separation, may give such directions as the nature and circumstances of the case require. In particular, it may compel the defendant to provide suitably for the education and maintenance of the children of the marriage and for the support of the plaintiff, as justice requires, having regard to the circumstances of the respective parties. And the court, in such an action, may render a judgment compelling the defendant to make the provision specified in this section where, under the circumstances of the case, such a judgment is proper, without rendering a judgment of separation."
Gilbert-Bliss: Civil Practice of New York, Annotated, Book 6A, section 1164.
Notwithstanding the designation of the woman as "the *Page 175 wife", the court held that a judgment of separation and maintenance survived a subsequent ex parte decree of divorce awarded to the husband in a sister state.
I submit that justice and equity require that the designation of the parties as "husband" and "wife", or as "married persons", in our statute, should be regarded, in circumstances such as those in the instant case, as mere descriptio personarum. It is to be remembered that statutes providing for separate maintenance are remedial in character and should be liberally construed. 42 C.J.S., Husband and Wife, section 614. This court should hold that the prior decree of separate maintenance was not terminated by the Nevada ex parte decree of divorce. Estin v. Estin, supra (334 U.S. 541); Cox v. Cox, supra; Schimek v. Schimek, (1931)109 N.J. Eq. 395, 157 A. 649; Robinson v. Robinson, (1933)250 Ky. 488, 63 S.W.2d 605; Wagster v. Wagster, (1937)193 Ark. 902, 906, 103 S.W.2d 638; Simonton v. Simonton, (1925)40 Idaho 751, 236 P. 863, 42 A.L.R. 1363, and Anno., 1375.
We have held that "the public policy of this state has no sympathy for those who seek to shirk the duty imposed by decrees directing the payment of support money". Cousineau v.Cousineau, 155 Or. 184, 201, 63 P.2d 897, 109 A.L.R. 643. To give to the Nevada decree the effect which Dr. Rodda seeks here,
"* * * would be to offer a premium to all discontented husbands by way of deserting their wives and obtaining a * * * divorce in a foreign jurisdiction, and thus [relieving] * * * [themselves] of all obligations to pay any alimony, allowance, or support. It would thus put it in the power of the husband to do, through the instrumentality of a foreign jurisdiction, what he could not do in the courts where he and his wife both resided. We are not disposed to sanction so great an imposition upon *Page 176 our own citizens, and the domestic policy of our own state. * * *"
Cook v. Cook, (1882) 56 Wis. 195, 14 N.W. 33, 40, 43 Am. Rep. 706.
I note the suggestion by Mr. Justice Brand that the Oregon courts have inherent equitable jurisdiction to award alimony upon an independent suit therefor instituted subsequent to an ex parte divorce obtained in a sister state. I am in sympathy with that view. I think, however, that the point does not arise upon the record in this case. The only issue presented here, as I see it, is whether or not the ex parte divorce decree of a sister state terminated ipso facto the husband's liability under the previous decree of separate maintenance. Conceding Mr. Justice Brand's contention, however, it should be apparent that if, after such an ex parte divorce, the courts may still award alimony, it must be upon the theory that the husband's duty to support his former wife survives the divorce. When that duty of support has been merged into a decree of separate maintenance, to say, in effect, that, because the full faith and credit clause compels us to recognize the bare divorce, the husband's duty of support may be continued only by transmuting the separate-maintenance decree into one for alimony, is, it seems to me, an inequitable insistence upon form rather than substance.
As the majority opinion states, it is not likely that the problem presented by the facts in this case was in the minds of our legislature in 1941, when our separate-maintenance statute was adopted, as the rule of Haddock v. Haddock was then still being followed, and the courts of this state no doubt would have refused to recognize such a decree as the present Nevada one in any respect whatever. It would seem that the legislators *Page 177 could not have conceived that anyone would ever suggest that an erring husband might be relieved of his duty to support his wife by the mere force of an ex parte divorce obtained by him in a sister state. Even farther still from their minds must have been the thought that a divorce having the effect suggested might be secured ex parte by an erring husband against an innocent wife, without a showing of any equity in his favor, and without proof that she was at fault in any respect.
The financial burden imposed upon Dr. Rodda by the separate-maintenance decree was not heavy. Mrs. Rodda, broken in health, and no doubt seriously in need of the small contribution toward her support which the decree awarded, may very well, as a result of the affirmance of the lower court's order, become impoverished and an object of public charity. That one of its citizens may be placed in such a situation by the ex parte decree of a sister state is a matter of vital concern to the State of Oregon, and that concern should be a sufficient reason in law to justify its courts in maintaining the integrity of the prior Oregon decree. Estin v. Estin, supra (334 U.S. 541). The legislature, when it convenes, may perhaps, by an amendment of the separate maintenance act, give verbal assurance, beyond the possibility of judicial doubt, that, under circumstances such as these, a decree of separate maintenance will survive a subsequent ex parte decree of divorce. But, in the meantime, the Oregon court will have lost jurisdiction over Dr. Rodda, and the legislative action, if any should eventuate, will come too late to be of any benefit to Mrs. Rodda.
The decision of the majority to vacate the separate-maintenance decree, upon the ground that the parties are no longer husband and wife, is, in my opinion, contrary *Page 178 to public policy and inequitable. It gives to the Nevada decree the effect of an in personam judgment against the defendant, although the court had no jurisdiction over her person. Moreover, the insistence of the majority that the dissolution of the marital status by the ex parte decree destroyed ipso facto all of the "incidents" of the marriage, including the wife's rights to alimony under the decree of separation, merely because she is no longer "the wife" in the full sense of the term, implies, as I think, an unrealistic deference to the niceties of semasiology.
Dr. Rodda is appealing to a court of equity to relieve him from the burden which was lawfully imposed upon him by that court. His action, in resorting to the Nevada court to procure a divorce which had been denied him in Oregon, in so far as such action was evidently motivated by a desire to evade payment of alimony which had been justly awarded by an Oregon court to the wife whom he had wronged, demonstrates that, for his own part, he is unwilling to do equity. The allowance of his motion to vacate the decree of separate maintenance will have the effect of depriving Mrs. Rodda of all remedies which are now available to her for the enforcement of her just rights in the premises. A court of equity ought not to lend its aid to the accomplishment of an inequitable scheme. The fact that the mere letter of the statute may be insufficient to chart a course of procedure adequate to meet the exigencies of a novel situation, should not prevent a court of equity from adopting whatever mode of proceeding may be necessary to carry out the spirit of the law. Section 13-715, O.C.L.A.;Cousineau v. Cousineau, supra; Bartlett v. Bartlett, 175 Or. 215,243, 152 P.2d 402.
"Courts which have a true conception of the philosophy of equity constantly reiterate the fact *Page 179 that equity meets all conditions; that human ingenuity and human affairs can not create a condition which the long arm of the court of equity cannot reach if injustice or wrong would otherwise result. See Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909, 936; Rice v. Van Vranken, 132 Misc. 82, 229 N.Y.S. 32." Teachers' Retirement Fund Ass'n v. Pirie, 150 Or. 435, 445, 46 P.2d 105."* * * the conception of law as a means toward social ends, the doctrine that law exists to secure interests, social, public and private, requires the jurist to keep in touch with life. Wholly abstract considerations do not suffice to justify legal rules under such a theory. The function of legal history comes to be one of illustrating how rules and principles have met concrete situations in the past and of enabling us to judge how we may deal with such situations in the present, rather than one of furnishing self-sufficient premises from which rules are to be obtained by rigid deduction." Pound: The Scope and Purpose of Sociological Jurisprudence, p. 146.
The foregoing considerations, which appear to me to be compelling, have moved me thus to register my respectful dissent from the majority opinion herein.
KELLY, J., concurs in the foregoing dissenting opinion.