I agree with the majority in the following respects: (1) Dr. Rodda established a bona fide residence in Nevada; (2) The Nevada court had jurisdiction to divorce the parties; (3) The Full Faith and Credit Clause requires the Oregon court to recognize that the plaintiff and defendant are no longer married persons; (4) The effect of the Nevada divorce on the Oregon separate maintenance decree presents a question of Oregon law unaffected by the Full Faith and *Page 180 Credit Clause; (5) The Oregon separate maintenance law relates to the duties between married persons. That statute cannot serve as the basis for an order requiring the payment of alimony for any period subsequent to the time when the Nevada decree has been brought to the attention of the Oregon court; (6) Under our previous decisions, the authority of an Oregon court to award alimony in a separate maintenance suit or to award alimony as an incident of an Oregon divorce, is limited by the provisions of the Oregon statutes.
I do not agree that an Oregon court of equity is powerless to do justice in a case such as this which is not covered by any Oregon statute. I do not agree that we are limited to determining "whether under Oregon law the former husband is still obligated to support his former wife under that decree". (Italics mine). I suggest that there is another legal basis aside from the statute under which the lower court in this case may determine whether or not a decree should be rendered requiring Dr. Rodda to continue to support his former wife. That basis, as I shall attempt to show, is the inherent power of equity. I have no quarrel with the actual decision in Huffman v. Huffman, 47 Or. 610, 86 P. 593, cited by the majority. It relates to the power of an Oregon court to make awards incident to a divorce decree under then existing statutes. The case was decided in 1906. In that case it was said, "The great weight of judicial utterances, however, is to the effect that all authority to award alimony on decreeing a dissolution of the marriage must be found in the statute expressly conferring the right * * *". The court cited 2 Bishop on Marriage, Divorce and Separation, § 1039. The work was published in 1891. It also cited Stewart, Marriage and Divorce, § 364, which was published in 1887. I shall presently show that the great *Page 181 weight of modern authority recognizes the inherent power of a court of equity to award alimony regardless of statute. The change in the weight of authority is well illustrated by comparing the 4th edition of Pomeroy's Equity Jurisprudence with the parallel section 1120 in the 5th edition. Since, as the majority holds, the duty to support under the separate maintenance statute and decree ended by reason of the divorce, the remaining question is whether an Oregon court has power to require the husband to continue to pay alimony after he, as plaintiff, has received an ex parte foreign decree of divorce, and if so, whether it can be done in this case. I address myself first, to the question of power.
If the Oregon court has the power to require the husband to continue the payment of alimony after he, as plaintiff, received a foreign decree of divorce, then it must be conceded that there would be persuasive reasons for considering the question on its merits in this case. The Oregon court has found the husband to be at fault. The decree in Nevada was based on a law in which fault was not at issue. The Nevada court never acquired personal jurisdiction of the wife. The wife never had a day in court as to her right to alimony, and, not being a resident of Nevada, could not have received a divorce there if she had appeared in the suit.
There is good authority for the proposition that where a wife in the state of her residence secures a divorce from her husband on substituted service, and therefore cannot secure a personal decree of support from him, she may later, by an independent suit, secure such an order in the state of her residence if she can get personal service upon him. 17 Am. Jur., Divorce and Separation, § 627, p. 482, § 630, p. 483; Hutton v. *Page 182 Dodge, 58 Utah 228, 198 P. 165; Ware v. Ware, 144 Kan. 121,58 P.2d 49; Stephenson v. Stephenson, 54 Ohio App. 239,6 N.E.2d 1005; Wick v. Wick, 58 Ohio App. 72,15 N.E.2d 780; Adams v. Abbott, 21 Wash. 29, 56 P. 931; 2 Nelson on Divorce, § 14.21, p. 26. The principle on which the decisions are based is well set forth in the analogous case of Wagster v.Wagster, 193 Ark. 902, 103 S.W.2d 638. It is also held that:
"Where the right subsequently to apply for alimony is preserved by reservation in the decree itself, an application for alimony may be made after the rendition of the judgment of divorce." 17 Am. Jur., Divorce and Separation, § 630.
In the case of McFarlane v. McFarlane, 43 Or. 477, 73 P. 203, 75 P. 139, the plaintiff brought suit in Oregon for divorce upon substituted service. She was awarded a decree. Several years later she filed a petition in the original divorce suit, seeking alimony. The defendant appeared specially, on the ground that the court was without jurisdiction. The court by Chief Justice Moore said:
"* * * The plaintiff was not obliged to take a decree in said suit, but, having done so, she thereby waived her right to alimony, costs, and attorney's fees; and, as our statute contains no provision allowing the court jurisdiction to pass upon these questions, when the defendant is found within the reach of its process, and the right to assume such jurisdiction never having existed at common law, the court erred in awarding plaintiff any sum whatever on account of alimony, attorney's fees, and costs in the original suit.
It is true that the plaintiff had no obligation to sue her husband for divorce but she had a statutory right to do so and to secure it upon substituted service. It is a strange theory which holds that the plaintiff *Page 183 waived her right to alimony when the fact was that the court which granted the divorce had no jurisdiction to award it. Commenting upon this situation, we quote from a well-considered note in the Harvard Law Review:
"Where a decree for alimony is an award in personam and the husband is not within its jurisdiction, a court is powerless to award alimony. But if the wife later resorts to a court having personal jurisdiction over her erstwhile spouse, the public interest in requiring him to contribute to her support is often ignored, and it is held that a divorce without alimony is conclusive against a right to further support, because alimony cannot be granted after the marriage is terminated. This argument seems to overlook the fact that alimony after an absolute divorce is essentially a substitute for the terminated marital duty of support, rather than an embodiment of that duty, as it was when a divorce did not end the marriage. Subsequent suits have also been denied on the ground that the prior decree was `res judicata' on the issue of alimony, or constituted a `waiver' of the wife's right to support. A number of courts, however, have recognized that there is no juristic necessity for suing for alimony and divorce in one suit, that an issue cannot be res judicata where the proceeding is ex parte and the solution of the problem is beyond the jurisdiction of the court, and that piecemeal litigation is justified by necessity in this situation.
"Where it is the husband who obtains an ex parte divorce in another state, a few courts cling to the notion that subsequent decrees for alimony are impossible because his marital duties have ended; and such a divorce has even been held to terminate a prior order for separate support. But alimony is granted in a majority of the states, because there is no possibility of `waiver' by the wife and the husband's conduct often approximates a fraudulent evasion of his duties to his family. * * *" *Page 184 53 Harv. L. Rev. 1184; and see cases cited in the footnotes.
The McFarlane case is cited in a note (83 A.L.R. 1248), which deals with a wholly different problem. At the opening of the annotation it is said:
"The present annotation presupposes that the divorced wife seeks the alimony from the same court which has previously granted her a divorce. It assumes, generally, that the court would originally have had jurisdiction to award alimony."
It is also said that under statutes:
"It has been generally, though not invariably, held that statutes permitting modifications or changes as to alimony do not apply where no alimony has been granted in the decree." 83 A.L.R. 1250.
Many cases are cited. With three exceptions, one of them being the McFarlane case, the decisions cited in the note involved divorces obtained on personal service of the defendant. These cases are authority merely for the proposition that, when a court which has jurisdiction to award both divorce and alimony, makes no provision for alimony, it has no power under statutes like our own, to provide later for alimony upon motion in the original suit. This is the law of Oregon. Saurman v. Saurman, 131 Or. 117, 282 P. 111. The only cases cited in the note which support the McFarlane case are Howell v. Howell, 104 Cal. 45, 37 P. 770 and Kelley v. Kelley, 317 Ill. 104, 147 N.E. 659. Those cases apply the same rule where the plaintiff sues on substituted service, as is applied when the plaintiff secures a divorce on personal service. In all three cases the attempt was made by motion to open up the original final decree. No effort was made to bring an independent suit. If the McFarlane case is law, it must *Page 185 be because, being an Oregon divorce, the Oregon statute is held to be a limitation on the power of the court. I recognize that such is the general rule, but would suppose that the Oregon statute might be liberally construed to cover the case for reasons stated below.
If the McFarlane case is still deemed to be the law, it is distinguishable from the case at bar. The plaintiff misconceived her remedy by seeking to open a final decree on motion instead of bringing an independent suit. Upon that point the Oregon court might have followed, but did not follow, the procedure followed in Baird v. Baird, 311 Mass. 329, 41 N.E.2d 5. In that state the court has statutory power to grant alimony after a divorce. The plaintiff filed a motion for modification in the original divorce suit but the court treated it "in accordance with its essential substance" as a separate suit for alimony. The McFarlane case is to be distinguished also from the case at bar because in that case the wife brought the suit in Oregon. In the case at bar the husband secured a foreign divorce in Nevada. The wife could not have waived her right to alimony when the husband brought the suit, nor could he waive it for her.
The cases from other states which are cited supra are persuasive but are not directly in point on the question at issue. Where an Oregon court grants a divorce to the wife on account of the fault of her husband, the court normally has power to award alimony as an incident thereto. The only reason that it cannot give full relief in a case based on substituted service is that it has jurisdiction over the status but not personal jurisdiction over the husband. It should logically follow that upon getting personal service on the husband at a later time, the court may exercise the latent power which was vested in Oregon courts to grant alimony *Page 186 as an incident to the divorce. This is merely an application of, and not an exception to the rule that alimony can be granted as an incident to an Oregon decree of divorce.
While the authorities are not unanimous, the better-reasoned decisions hold that after the husband has obtained a foreign divorce upon constructive service, the wife in the state of her residence may by an independent suit, secure an order for alimony if she obtains personal service upon her former husband.
"* * * Thus, if the wife secures a divorce from her husband, who is a nonresident, in a court having jurisdiction over him only by substituted service, the divorce decree is not a bar to the wife's subsequent application for alimony because jurisdiction to pass on the question of alimony was wanting in the divorce suit, even though there was sufficient to sustain a judgment affecting merely the marital status. This rule applies not only where the divorce decree was entered in the same state or country in which the application for alimony is made, but also where the wife procured a divorce in another state or country. Similarly, a divorce granted ex parte to the husband in another state the courts of which acquired no jurisdiction of the wife other than by substituted service does not bar the wife's right subsequently to apply for alimony, even though the decree is valid so far as the marital status is concerned. Under such circumstances a statute forbidding the allowance of alimony to a wife against whom her husband has secured a divorce has no application." 17 Am. Jur., Divorce and Separation, § 627.
In Searles v. Searles, 140 Minn. 385, 168 N.W. 133, the court said:
"In the divorce action in Washington jurisdiction was acquired of the defendant, this plaintiff, by substituted personal service in Minnesota as authorized *Page 187 by the Washington statute which is similar to ours. The action was in rem. The res was the marriage status or relation existing between the parties. That was within the jurisdiction of the Washington court and the effect of its judgment was to destroy it. There was no determination of the question of alimony. The judgment, since it was in rem and operative only on the res, the marriage status, is not res judicata on an application for alimony. The wife, in such a situation as is before us, may maintain an independent action for alimony in the state of her residence and matrimonial domicil. This is the substantial effect of Thurston v. Thurston, 58 Minn. 279, 59 N.W. 1017, and the doctrine finds general though not universal support. See Toncray v. Toncray, 123 Tenn. 476, 131 S.W. 977, 34 L.R.A. (N.S.) 1106, Ann. Cas. 1912C, 284; Cox v. Cox, 19 Oh. St. 502, 2 Am. Rep. 415; Turner v. Turner, 44 Ala. 437; Cook v. Cook, 56 Wis. 195, 14 N.W. 33, 443, 43 Am. Rep. 706; note 34 L.R.A. (N.S.) 1106; note Ann. Cas. 1912C, 284, 289; note 77 Am. St. 228, 240; 1 Enc. Pl. Pr. 415; 2 Nelson, Div. Sep. § 936; 2 Bishop, Marr. Div. § 844, et seq.; 1 R.C.L. 937."
See also Toncray v. Toncray, 123 Tenn. 476, 131 S.W. 977;Cox v. Cox, 19 Ohio St. 502, 2 Am. Rep. 415; Slapp v. Slapp,73 Ohio App. 444, 57 N.E.2d 81, 143 Ohio St. 105,54 N.E.2d 153; Sheridan v. Sheridan, 213 Minn. 24, 4 N.W.2d 785, (and see comment on this case in 157 A.L.R. 1402); Rodgers v.Rodgers, 56 Kan. 483, 43 P. 779; Cochran v. Cochran,42 Neb. 612, 60 N.W. 942; Davis v. Davis, 70 Colo. 37, 197 P. 241;Thurston v. Thurston, 58 Minn. 279, 59 N.W. 1017; 27 C.J.S., Divorce, § 231 (b) p. 947; 3 Nelson on Divorce, § 33.40, p. 510-11; 42 A.L.R., 1385 Note; Note to In re Popejoy, 77 Am. St. Rep. 241.
Although there is a conflict of authority, it has also been held that a prior decree for separate maintenance *Page 188 may survive a foreign divorce obtained on substituted service.Estin v. Estin, 296 N.Y. 308, 73 N.E.2d 113; Simonton v.Simonton, 40 Idaho 751, 236 P. 863, 42 A.L.R. 1363; Miller v.Miller, 200 Iowa 1193, 206 N.W. 262; Manney v. Manney, (Ohio App.), 59 N.E.2d 755. In the Simonton case the right of the wife to alimony was asserted in an independent action. It was held that the separate maintenance decree continues in effect until modified. In the Miller case it appears that the right was asserted by a petition "in the nature of a creditor's bill". The court modified the maintenance decree. In Manney v. Manney andEstin v. Estin the issue was decided upon a motion made in the original case wherein the wife had been awarded separate maintenance. In the Manney case, upon the showing made by the former husband, the order was reduced from $50 to $35 a week. InCommonwealth v. Esenwein, 348 Pa. 455, 35 A. 2d 335,325 U.S. 279, 89 L.ed. 1608, the issue was raised by motion of the former husband in the original separate maintenance action. He asserted that he had become a resident of Nevada and had obtained a divorce. Upon that showing the trial court reduced the amount of alimony which had been fixed in the separate maintenance case. Thereafter he sought the entire cancellation of the support order but the court then held that his Nevada divorce was void for want of jurisdiction. The United States Supreme Court said that if the divorce had been valid, the maintenance order would not, under Pennsylvania law, have survived.
The cases which hold that the decree of separate maintenance may survive a foreign ex parte divorce must, it seems, be based on the power of a court of equity, though the courts do not expressly base the decisions on that ground. The only other basis which *Page 189 could be claimed would be on the theory that the Oregon statute providing for separate maintenance in the case of married persons applies in cases where they are no longer married.
Speaking of the effect of a foreign divorce based on constructive service upon the power of a court of the wife's domicil to award alimony after obtaining personal jurisdiction of the former husband, the A.L.R. annotator makes the following pertinent comment:
"* * * to entitle the former wife to alimony, it must be held or assumed that the right to alimony is not exclusively an incident of divorce, but may be allowed independently thereof. That question is, of course, broader than the subject of the present annotation. It may be noted, however, that in a majority of states alimony may now be awarded in an independent suit therefor. 1 R.C.L. 879." 42 A.L.R. 1385.
He continues:
"Of course, in a jurisdiction where the former view still prevails, that alimony in merely incidental to a divorce, the previous decree of divorce, although rendered upon constructive service of process, is fatal to an independent suit for alimony, upon the present assumption that that decree dissolved the marriage relation."To entitle the former wife to alimony in an independent suit, it must not only appear that, according to the law of the state in which the question arises, alimony may be allowed independently of a suit for divorce, but that in some circumstances it may even survive the dissolution of the marriage relation." 42 A.L.R. 1386.
Obviously, if in a given state, alimony could only be awarded as an incident to a divorce or separate maintenance decree rendered in that state, it would follow that a court could not award alimony where the *Page 190 parties had been divorced in a foreign state. The ultimate question in this case is whether an Oregon court has jurisdiction to award or continue a previous award of alimony when its action is not taken as an incident to an Oregon divorce. At common law the duty of a husband to support his wife is terminated by divorce. Grush v. Grush, 90 Mont. 381, 3 P.2d 402, 1 R.C.L., Alimony, § 15, p. 877, 17 Am. Jur., Divorce Separation, § 513. It follows that unless there is statutory authority, or unless a court of equity has jurisdiction to intervene, there could be no allowance of alimony after divorce. The statute concerning separate maintenance, Or. Laws, 1941, ch. 408, p. 694, by its terms, applies expressly to the granting of alimony on account of a separation of married persons. In Cohn v. Cohn, 4 Wash. 2d 322, 103 P.2d 366, the court said:
"Separate maintenance is the allowance granted to a wife for the support of herself and children while she is living separate and apart from her husband. The right to separate maintenance is grounded upon the fundamental legal duty of the husband to support his wife during the time that the marriage relation exists. Though a legal separation has been decreed, the marital relation still exists. It anticipates that a future reconciliation may be brought about. It is otherwise where a divorce has been granted. In such case the marital relation is dissolved and the husband, aside from the support commanded by the decree, is not compelled to care for his former wife."
In Magowan v. Magowan, 57 N.J. Eq. 195, 39 A. 364, a bill was "filed by a wife against her husband for maintenance under thestatute." The husband had previously received a decree of divorce in Oklahoma. The court said:
"* * * I am constrained to the conclusion that the decree of the Oklahoma court must in this suit *Page 191 be regarded as a valid judgment. This being so, there can be no decree for the allowance of a sum for maintenance, inasmuch as such a decree is dependent upon the existence of the marital relations between the parties. Freeman v. Freeman, 49 N.J. Eq. 102; Lynde v. Lynde, 54 N.J. Eq. 473. * * *"
See Patterson v. Patterson, 82 Cal. App. 2d 838,187 P.2d 113; 27 Am. Jur., Husband and Wife, § 429, p. 34.
The Oregon divorce statute provides that "Whenever a marriage shall be declared void or dissolved, the court shall have power further to decree" for the recovery of alimony from the party in fault. O.C.L.A., § 9-914, as amended by ch. 228, Laws of 1947. It seems clear that when alimony is decreed in a suit for separate maintenance, the duty of the husband to pay as separate maintenance pursuant to the separate maintenance statute would terminate upon a showing that the parties are no longer husband and wife. If it should be held that after divorce, the husband must continue to pay for the support of his wife in the amounts prescribed in a previous separate maintenance suit, the payment so continued would be deemed alimony as between divorced persons and not separate maintenance. If an Oregon court has no authority to enter a decree for alimony after a foreign divorce, then it would not have the power to continue the provisions of a separate maintenance decree after the foreign divorce. On the other hand, if the Oregon court does have authority in an independent suit, to enter a decree for alimony after a foreign divorce, there could be no substantial objection to the making of an order continuing the separate maintenance decree. It would be continued, not as separate maintenance, but as alimony after divorce. The Oregon statutes, by their *Page 192 terms, refer to the power of an Oregon court and authorize alimony only when the Oregon court dissolves the marriage or decrees separation. When a court of a foreign jurisdiction has dissolved the marriage, there appears to be no status in Oregon authorizing an Oregon court to enter a decree for alimony.
It remains to be determined whether the Oregon court has inherent equitable power to award alimony to the wife, a resident of Oregon, irrespective of statute, after the parties have been divorced at the suit of the husband upon substituted service by a foreign decree. From a note in 141 A.L.R., p. 402, we quote:
"By the overwhelming weight of American authority of later years, and especially of recent times, the original inherent jurisdiction of equity to grant alimony independently of divorce is freely sustained, both in cases in which the question was expressly raised and in those in which jurisdiction was exercised under the tacit assumption that it existed."
See also 141 A.L.R. 420; 27 Am. Jur., Husband and Wife, § 402, p. 9.
Decisions from 25 states support the text. Most of the authorities cited relate to the power of equity regardless of statute, to order the payment of alimony between married persons, but the decisions are not limited to that situation. We have already cited the cases which hold that a divorced wife may bring an independent suit for alimony on personal service in the state of her residence when the court which granted a foreign divorce on substituted service to her husband had no power to adjudicate the right of the wife. In the case of Bray v. Landergren,161 Va. 699, 172 S.E. 252, the plaintiff in Virginia brought suit for divorce against her husband, a nonresident, upon substituted *Page 193 service. There was no personal appearance by the defendant. The trial court granted the divorce and awarded alimony. On appeal the court upheld the inherent power of equity to award alimony but reversed the case because of want of personal service upon the defendant. In a well-considered opinion, the court said:
"The jurisdiction of our courts of equity in divorce cases is statutory. McCotter v. Carle, 149 Va. 584, 140 S.E. 670; Chandler v. Chandler, 132 Va. 418, 112 S.E. 856; Blankenship v. Blankenship, 125 Va. 595, 100 S.E. 538, and in Code, § 5111, as amended by Acts 1927 (Ex. Sess.) c. 85, provisions are made for alimony, but they are not exclusive."In this commonwealth, and indeed in most of the states, divorces at early dates were by act of the Legislature, but court of equity, at a time when they had no general jurisdiction to grant them, asserted and exercised jurisdiction to decree alimony."
The court referred to the case of Purcell v. Purcell, 4 Hen. M. (14 Va.) 507, in which the plaintiff wife brought an independent suit for alimony without seeking divorce. In the Purcell suit, the chancellor said:
"If the jurisdiction of this court were now to be settled upon English precedents, there might be some doubt about the question, from the cases, as brought into one view, by Mr. Fonblanque; but I shall leave this clashing of English Judges to be reconciled among themselves, and take up the question upon first principles."I hold, that in every well regulated government there must somewhere exist a power of affording a remedy where the law affords none; and this peculiarly belongs to a Court of Equity; and as husband and wife are considered as one person in law, it is evident, that in this case the law can afford no remedy; which is universally admitted to be a sufficient ground to give this Court jurisdiction; *Page 194 and therefore it must entertain the bill, if there be sufficient proof of the marriage."
Commenting upon this decision, the court in Bray v.Landergren said: "It will be observed that jurisdiction was here taken because law afforded no other relief." The court then stated that another appealing reason was set forth in 1 R.C.L., p. 876, and quoted with approval the following:
"Although the power to grant divorces had become identified with the legislative power as the result of long usage, the determination of the legal consequences flowing therefrom was so bound up with the property rights of the parties and so essentially judicial in its nature, that the courts were loath to allow the legislature to assume the same. Consequently, although courts of chancery would not assume jurisdiction over divorce in the absence of direct authorization, they nevertheless held that their general equity jurisdiction must be deemed to include the right to award alimony in a proper case, inasmuch as the ecclesiastical courts, to which such jurisdiction rightfully belonged at common law, had never constituted a part of our judicial system. Their conclusion was further strengthened by the fact that in England, during the commonwealth, the ecclesiastical courts were abolished, and in consequence thereof their entire jurisdiction in cases of alimony and of separate maintenance devolved, as a matter of course and necessity, upon the court of chancery as the only tribunal fitted and competent to decide thereon."
The court also quoted with approval from Harris v. Harris, 31 Grat. (72 Va.) 13, 17, as follows: "But the power of courts of equity to decree alimony did not originate in any statute. It is a power inherent in them." The court continued:
"It is said, however, that this power to award alimony by a court of equity, independent of statute, *Page 195 does not exist where the divorce is absolute, because in such a case there was no duty to support under the common law. 1 R.C.L., p. 877.
"* * *
"The situation in this country has now definitely changed. Unnumbered cases arise in which absolute divorces are granted for supervenient causes. In such cases the obligations to support are as cogent as they are when there is separation only. If a statute authorized these absolute decrees but gave the wife no right to alimony or to support from her delinquent husband, we would have a right without remedy which would be as appealing as was the situation in Purcell v. Purcell, supra. The same reasons for the intervention of equity which prevailed in one case, obtains in the other."
The court also quoted with approval from a note by Mr. Freeman to 60 Am. Dec. 667, as follows:
"And there are cases which hold that this principle of the incidental character of alimony extends to the divorce unknown to the ecclesiastical law — the divorce absolute, or a vinculo matrimonii, for causes other than marital incapacity; and therefore that, though not expressly authorized to grant alimony in such cases, the courts may nevertheless do so: Harris v. Harris, 31 Grat. [72 Va.] 13, 17; See Chaires v. Chaires, 10 Fla. 308, 312; Campbell v. Campbell, 37 Wis. 206, 220. But this doubt, of whatever weight, is removed generally by statutes which provide for alimony with all kinds of divorce."
The pending case is one of first impression in Oregon. The modern majority rule concerning the inherent power of equity, if approved, will make it possible for the courts of this state to do justice to a class of its citizens who would otherwise be without remedy. Where the former wife whose husband has *Page 196 secured a divorce in a foreign jurisdiction on substituted service, secured personal service upon her husband in this state, a court of equity could upon full hearing, award to the former wife such relief, if any, as she might merit under well recognized rules of this jurisdiction concerning fault, ability to pay, clean hands and the like. Where the foreign decree was granted without reference to the fault of either party and without jurisdiction to award alimony or divorce to the wife, she, a resident of Oregon will be deprived of a day in court and of the right to show facts if such there be, entitling her to relief, unless equity perceiving the injustice of the situation and the inadequacy of any remedy at law, assumes jurisdiction.
Authorities from other states advise us that we should hold that Oregon courts have inherent equitable power to award alimony, subject only to the limitations imposed by our statutes. Where the legislature has made specific provision for the allowance of alimony in our statute on separate maintenance and in the statute on divorce and has specified the conditions upon which alimony may be granted, then it is clear that the jurisdiction of the Oregon court would be limited to the specific provision of the statute. That is to say, that where the legislature has covered the field, the power of equity would be limited by the statute and within that field the power of the court to award alimony would be limited to the provision of the statute. Our decisions are innumerable to the effect that the power of the Oregon court to grant separate maintenance or alimony upon divorce, is limited by the provisions of the statute. Howard v. Howard, 164 Or. 689, 103 P.2d 756; Noblev. Noble, 164 Or. 538, 103 P.2d 293; and many other cases. *Page 197
The statutes of Oregon, however, do not cover the entire field. The question in this case is not within the purview of any statute. The provision of our divorce statute is that "Whenever a marriage shall be declared void or dissolved, the court shall have power to further decree" for the payment of alimony in certain cases. This statute refers only to the power of an Oregon court when that court renders a decree of divorce. The statute has no application to a case in which a divorce on substituted service has been granted in a foreign jurisdiction. We are at liberty therefore, without doing violence to our former decisions, to hold that equity has inherent power not limited by any statute to award alimony upon a proper showing, notwithstanding the fact that the parties have been divorced by a foreign decree on substituted service. This view harmonizes the apparently inconsistent statements in 17 Am. Jur., Divorce and Separation, § 513. In that section it is said:
"* * * But in the case of an absolute divorce terminating the matrimonial ties, the duty of support no longer exists at common law, and in the absence of a statute continuing the obligation of maintenance beyond the dissolution of the marriage, it is difficult to find a basis for awarding permanent alimony. The better view would appear to be that the right to award permanent alimony on decreeing a dissolution of the marriage can be based solely upon express statutory provision. * * *"
None of the cases cited in support involved the power of a court of equity to award alimony after a foreign divorce on substituted service. They relate to cases in which the divorce is brought in a state in which there are statutory provisions concerning alimony when granted by the courts of that state. The *Page 198 quoted provision therefore, is not inconsistent with the text in the later portion of the same section where it is said:
"* * * That a statutory provision, unless expressly declared to be exclusive, is not so is evident from the fact that equity frequently claims inherent jurisdiction over the subject of alimony, as where a wife is permitted to bring an action for alimony alone although she has previously been granted a divorce from her husband by a foreign court which was unable to award her alimony owing to lack of jurisdiction of both the person and property of the husband. Similarly, where a divorce has been obtained in another state by the husband in an ex parte proceeding, there being no jurisdiction of the person of the wife except by constructive service, she is allowed to maintain a separate action against him for the recovery of alimony; and equity assumes jurisdiction to award alimony where a separation has been previously granted by legislative enactment. Furthermore, the courts of a number of jurisdictions, upon well-reasoned grounds, claim that, aside from statute, equity has jurisdiction to award alimony in an independent suit for separate maintenance. Of course, in some jurisdictions, authority to award alimony is regulated entirely by statutory provisions which are deemed to be exclusive. It is obvious that if jurisdiction is otherwise lacking, it cannot be conferred by the consent of the parties."
The foregoing considerations and authorities lead to the conclusion that the Oregon court sitting in equity has jurisdiction to determine whether or not alimony should be awarded in the case at bar.
It is significant to note that, notwithstanding the divergent views which are expressed in the majority and dissenting opinions, all are agreed that in equity and good conscience the wife should not be deprived *Page 199 of the right to alimony merely because of the foreign divorce in which her right could not be adjudicated. The question is whether we can find a remedy. Mr. Justice Lusk has clearly demonstrated that "what the legislature was concerned with in this act was the rights and duties of husband and wife as long as they continued to be such and no longer". I agree. I do not suggest that the court below by virtue of its inherent power should continue the separate maintenance decree after the divorce. That involves a contradiction in terms. I do suggest that the lower court can in this case exercise its equitable power and require alimony after divorce in such amount as seems equitable. I do not suggest that we "can say that Mrs. Rodda has commenced an independent suit for alimony after divorce". I do suggest that this court can properly remand the case with instructions to permit amendment, hear testimony and decide the issue.
The majority holds that the decree of the lower court must be affirmed. However, as I have attempted to show, the plaintiff would still have a right to bring an independent suit for alimony on the authority of the cases cited. Why then cannot the lower court consider in this case both the statutory and the equitable rights of the parties?
The case is before a court of equity. The defendant by motion invoked its jurisdiction. Both parties appeared personally. Upon a showing by the defendant that the parties are no longer married, the court issued a show-cause order requiring the plaintiff to show why the separate maintenance decree should not be vacated. The plaintiff's position below was that the Nevada decree, by virtue of its own force, ends his duty to pay alimony. The defendant's position was that the plaintiff *Page 200 never got a valid divorce in Nevada. Both were wrong. The order of the lower court is predicated upon the erroneous idea that it could not consider the case as one involving equitable powers and that the only question before it was whether or not the duty to pay under the separate maintenance law and decree survived the divorce.
Though the Nevada decree was not per se effective, the fact that the parties are no longer married is a material circumstance to which the Oregon court is required by its law to give consideration in determining whether the order for separate maintenance should be transformed into an order for alimony after divorce. The Oregon separate maintenance decree continues in force in any event until the Nevada decree has been brought to the attention of the Oregon court and until its effect is there determined. Although the decree of the lower court vacating the separate maintenance decree may have been based on an erroneous view of the law, still, for all we know, the decree may have been proper for reasons which were not presented to, or considered by the court. The separate maintenance decree was rendered nunc pro tunc as of February 1, 1944. The Nevada divorce was rendered on the 19th day of June, 1946, and the motion to vacate the separate maintenance decree was not filed until December, 1946. We do not know in what respect circumstances of the parties have changed. One or both of them may be remarried, and financial conditions may have changed. It is conceivable that the defendant who was granted the separate maintenance decree might no longer be entitled to it. It is also conceivable that she might be entitled to a smaller or to a larger allowance. One of the material circumstances which must be considered by the court is the fact that the marriage of the parties *Page 201 has ceased to exist by reason of the divorce. That in itself constitutes a material change in the conditions prevailing at the time of the order for separate maintenance.
If the inherent power of equity to grant alimony after a foreign divorce on substituted service is recognized, there would appear to be no distinction in principle between an independent suit for alimony brought after a foreign decree based on substituted service and a proceeding such as this to determine whether or not to continue an order for separate maintenance entered prior to the foreign decree. The issue in either case would be the same though the evidence may be different. In either case, before an Oregon court of equity would award or continue alimony, it would have to be satisfied, as of the time of the inquiry, that the facts are such that if the applicant for alimony had sued her husband upon personal service in Oregon she would have been found entitled to divorce and alimony. Slapp v.Slapp, supra. The public policy as declared by statute would properly control the equity court upon this issue. On the issue of fault the previous Oregon decree of separate maintenance should be considered binding as of the date thereof, but even upon that issue, as well as upon questions considering the present financial or marital condition of the parties, the court should hear evidence as to circumstances subsequent to the award of separate maintenance and down to the time of the hearing upon the husband's motion to terminate the separate maintenance decree. After securing his Nevada divorce the plaintiff moved the Oregon court for an order requiring the defendant to show cause why the maintenance decree should not be "modified, cancelled, set aside and terminated". He showed one fact which required the court to reconsider *Page 202 the entire issue, not that the fact of the divorce alone determined the issue, but that it presented the entire question in a new and different light. The husband prevailed in his application to the lower court for an order vacating the separate maintenance decree. He had no need to appeal. Since the order of the lower court, though based upon erroneous view of the law, might nevertheless have been proper for other reasons, the case should be remanded to the circuit court with directions to consider whether under all the circumstances as they shall appear on a full hearing, including the circumstances of divorce, the plaintiff should be required to continue the support of the defendant. The court, exercising equitable powers, would have the right to vacate, modify or continue the alimony provisions of the separate maintenance decree. If the court finds that the former wife is still entitled to alimony, it may make a decree to that effect, not as a continuation of separate maintenance, but as alimony upon divorce.
It would seem to be a futile act to affirm the lower court if, as I have indicated, the plaintiff would have an immediate right to bring an independent suit to establish her rights to alimony.
Equity has not lost its ancient power to give a remedy where it finds a right to which the law gives no adequate protection. InWilliams v. Pacific Surety Co., 66 Or. 151, 127 P. 145, 131 P. 1021, 132 P. 959, 133 P. 1186, the court said:
"Article 1, Section 10, of our Constitution provides that `every man shall have remedy by due course of law for injury done him in person, property or reputation,' and in pursuance of this provision (Section 983, L.O.L.) [now O.C.L.A., § 13-715] provides that `when jurisdiction is, by *Page 203 the organic law of this state, or by this code, or by any other statute conferred upon a court or judicial officer all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of the proceeding be not specifically pointed out by this code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.' This wipes out common-law procedure, as such, with all its delays and technicalities and leaves the court free to adopt such common-law procedure when in conformity with the spirit of the code, and to reject it when a procedure better calculated to facilitate the administration of justice presents itself. * * *"
In Bartlett v. Bartlett, 175 Or. 215, 152 P.2d 402, this court had a somewhat similar problem. An issue concerning the custody of a child was raised by a proceeding in habeas corpus. We held that the full inherent power of equity is available, not only to award custody, but also to determine certain collateral matters concerning support. We said, "It is no great strain upon the rules of pleading to treat the return on the writ as an answer and cross bill". In the Bartlett case we quoted with approval the following:
"`When jurisdiction is, by the organic law of this state, or by this Code or any other statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by this Code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.' O.C.L.A. § 13-715. Patterson v. Horsefly Irrigation District, 157 Or. 1, 15, 69 P.2d 282, 70 P.2d 36; Williams v. Pacific Surety Co., 66 Or. 151, 127 P. 145."*Page 204
We also quoted the following:
"`Courts which have a true conception of the philosophy of equity constantly reiterate the fact 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 can not 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' Ret. Fund Ass'n v. Pirie, 150 Or. 435, 445, 46 P.2d 105."In re Pittock's Estate, 102 Or. 47, 201 P. 428, an issue was presented by a petition in the probate department of the circuit court. It was contended that the relief sought was not available in the probate court but could be had only by a suit in equity. Referring to the statute which abolished county courts and vested the circuit court with probate jurisdiction, this court said:
"* * * The act did not lessen the jurisdiction of the Circuit Court in such districts but increased it by the addition of probate jurisdiction, which was formerly vested exclusively in the County Courts. When this litigation was presented to the Circuit Court, that tribunal was acting not only with respect to the probate jurisdiction but also to the general jurisdiction originally vested in such courts."
Although the facts in the pending case are different from those in the cases last cited, the principle of those cases is applicable here. The majority opinion neither accepts nor rejects the doctrine of inherent equitable power. It would seem that the existence vel non of that power is properly before the court, for if the power exists, every consideration of justice would lead to its exercise. The court of Chancery, having jurisdiction *Page 205 for one purpose will retain it for all purposes and will do complete justice as between the parties. Williamson v.Hurlburt, 99 Or. 336, 195 P. 562.
It may be objected that the issue raised by the defendant's motion and by the show-cause order is not broad enough to permit consideration of the equities of the case, even if an independent suit would lie. If that be the situation, then I think we should remand the case to the circuit court with leave to both parties to plead further. It would not be the first time that this court has authorized amendments in the interest of justice in an equity court. Murray v. Lamb, 168 Or. 596, 115 P.2d 336,124 P.2d 531; Enyart v. Merick, 148 Or. 321, 34 P.2d 629; Knappv. Wallace, 50 Or. 348, 92 P. 1054.
We cannot reverse this case because to do so would revive a dead statutory separate maintenance decree as such. We should not affirm the decree because to do so would be to deprive the defendant of the right to have her case decided on the merits. Since we cannot reverse and should not affirm, I suggest the middle ground of a remand with permission to amend.
I realize that the suggested procedure would not have been approved under technical rules of pleading as once administered. The plaintiff's motion may of course be construed as mere prayer to be relieved of the duty to pay under the separate maintenancelaw, but, more realistically, it seems that what the defendant is really concerned about, and really asks for, is relief from the duty to pay. He comes into court with unclean hands relying on a legal theory to relieve him of an equitable duty. Equity looks with jaundiced eye at such a request. *Page 206