I dissent from the portion of the majority opinion which sustains that part of the judgment awarding Anna Stacia Simonton $1,080 on the decree for separate maintenance of the wife and for support of the minor children. As to the balance of the opinion, I concur. I shall refer to Anna Stacia Simonton as plaintiff, because there are two appeals here and two Mesdames Simonton.
My reasons are: The decree of the Kootenai county court was rendered in November, 1893. The deceased, Rolvin D. Simonton, and the plaintiff were divorced by a valid decree of the Washington court in October, 1898. The son Rolla *Page 768 attained majority December 31, 1899, and the son Pearl, August 24, 1901.
The opinion concedes that "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 Kootenai county court had no jurisdiction or authority to decree separate maintenance to the wife except during the continuance of, and dependent upon, the marital relation, or support of the children beyond their minority. The law, in effect, wrote into that decree this language:
"Separate maintenance to the wife so long as she remains the wife, and support of the children so long as they remain minors."
"Words to that effect are a part of the statute by necessary implication." (Boehler v. Boehler, 125 Wis. 627, 104 N.W. 840.)
See, also, in addition to the cases cited in the opinion:Tremper v. Tremper, 39 Cal. App. 62, 177 P. 868; Piatt v.Piatt, 32 Idaho 407, 184 P. 470; Dewees v. Dewees, 55 Miss. 315; Flower v. Flower (N. J.), 44 A. 951.
This is not a case for consideration of the effect upon, or right of modification of, a decree upon the happening of some event which might entitle the defendant therein to move for modification or vacation of a portion thereof, where there still remain portions of the decree unaffected by such event, or where the decree is still supported by facts justifying some portion of its provisions for maintenance or support, and no such motion is made.
While the court says this is a case of first impression in this court, and it might be justified in inclining to the view that a decree which could be modified, for instance, upon the divorce, and was not so modified, might continue to be a valid decree, at least for such a nominal sum as $15 per month, for the support of the children during their minority, yet when plaintiff and her husband were divorced, one portion of the obligation ceased, that to support the wife; when the son Rolla reached majority, a second portion ceased; *Page 769 and when the son Pearl reached majority, the only obligation in any way still remaining, that for his support, ceased. And all of those facts appear from the record. Certainly, when the last child reached majority, all of the obligations of the deceased immediately ceased. In the language of Mr. Justice Marshall inBoehler v. Boehler, supra, "The judgment needed no such modification."
In pleading the judgment, the plaintiff must allege, in effect, and does allege, that it still remains in full force and effect. (34 C. J., p. 1094, sec. 1550, p. 1080, sec. 1526;Brandt v. Meade, 17 Ariz. 34, 148 P. 297; Vogel v. Walker,3 Utah, 227, 2 P. 210; Chaquette v. Ortet, 60 Cal. 594.) She must and does allege that she was still the wife of deceased at his death. The law, in effect, requires her to allege that the minor children were minors at his death, or that all these facts continued during the time for which recovery is sought. And she should be required to prove each of these allegations.
The burden is upon the plaintiff to establish a valid, subsisting judgment, and the administratrix has as much right to rely upon the law which must be read into the Kootenai county judgment as she would upon a plea of payment. The judgment of divorce is an absolute bar to the portion of the judgment providing for the maintenance of the plaintiff. (Harper v. Rooker, 52 Ill. 370.)
There was no res adjudicata except as to facts existing at the time of the decree and the amount of the allowance based on those facts. The decree only became final as to instalments falling due while those facts continued. There can be no resadjudicata in the absence of a final decree. (Kenner v. Kenner,139 Tenn. 211, 201 S.W. 779, L.R.A. 1918E, 587.) This, as a matter of fact, is, rather than an action upon that judgment, one for instalments thereunder, which became fixed, final and due, if at all, only by reason of the continuation of the facts upon which it was based, when and as they fell due. (34 C. J., p. 1082, sec. 1527.)
I cannot escape the reasoning of the court in Evans v. Evans,116 Wash. 460, 199 P. 764, and other cases of like *Page 770 effect, as easily as does the majority opinion, nor do I think there is, in that case, any confusion of a duty to have a decree modified with actual modification. The confusion is rather in the majority opinion herein. It is not necessary to decide upon whom the burden rested to secure a modification of the decree. It needs no modification. All the state of facts supporting it had ceased to exist, and, to paraphrase the language of Evans v. Evans, supra, if plaintiff is permitted to prevail, not a portion, but all "of the recovery would be for a sum which the deceased was under no legal obligation to pay because of the fact that the children had attained their majority," and the plaintiff was no longer his "wife."
". . . . A suit on a judgment may be defeated by proof of any facts showing that it would be against conscience to allow a recovery on the judgment. . . ." (34 C. J., p. 1090, sec. 1542.)
I cannot concur in the opinion that even though the marital relation had been dissolved, and the children come of age, there is no positive assurance that in a proceeding directly to modify the decree, relief would have been granted, or that the court could or would refuse to modify the decree until the payment of back instalments. It would be error for the court to refuse to vacate the decree for maintenance of either the wife or the children, when she had been divorced and they had reached their majority. Of such a case, Prichard v. Prichard,189 Mo. App. 470, 176 S.W. 1124, said:
"In this case, the defendant's marital obligation to plaintiff was dissolved for her fault by a judgment of divorce rendered by a court of competent jurisdiction, in an action to which she appeared. She is necessarily bound by that judgment, and it put an end to defendant's duty to maintain her. (Gilbert v. Gilbert, 83 Ohio St. 265, 94 N.E. 421, 35 L.R.A., N. S., 521; Skittletharpe v. Skittletharpe, 130 N.C. 72, 76,40 S.E. 851; Bidwell v. Bidwell, 139 N.C. 402, 409, 111 Am. St. Rep. 797, 52 S.E. 55, 2 L.R.A., N.S., 324.)" *Page 771
The same case quoted with approval from Weidman v. Weidman,57 Ohio St. 101, 48 N.E. 506. That case involved an action by a wife for alimony after a divorce had been granted, in which personal service had been had upon her. While denying the alimony upon that ground, the court said:
"The action for alimony is statutory, and by section 5702, Rev. Stats., it is provided that 'the wife may file her petition for alimony alone.' After an absolute divorce in an action in which the court had jurisdiction of both parties, she is no longer 'the wife,' and does not come within the provisions of the statute. Strictly speaking, the same is true in cases in which the divorce was obtained by the husband in anex parte proceeding. . . . ."
In Smith v. Superior Court, 136 Cal. 17, 68 P. 100 (s. c.,Smith v. Smith, 147 Cal. 143, 81 P. 411), the court, though referring to a judgment for maintenance, used the word "alimony," saying:
"It is conceded that a complete divorce will relieve petitioner from the judgment for alimony, because the plaintiff in the first suit would no longer be his wife."
It seems anomalous to give the Washington decree full force in this case in its effect upon property rights of plaintiff in the estate, under her first cause of action, but deny it any force in terminating the status of the parties as to the right to maintenance. Why give effect to the death of the deceased to terminate the maintenance, and not to the divorce which as effectively terminated it? Why is it that the death of deceased can be shown to terminate the maintenance decree, when it is only because his death terminates the marriage relation that it is given that effect, when the divorce has the same effect and is not permitted to be shown or given effect as terminating the decree?
In the language of Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227, cited in the main opinion:
". . . . An end has been put to the relation of marriage, as effectually as would have resulted from the death of either of the parties, as a consequence, all duties and obligations *Page 772 necessarily dependent upon the continuance of that relation immediately cease."
The decree of divorce as effectually terminated the decree for maintenance of the wife, and their arrival at majority that for support of the children, as would have the death of the deceased on the same date.
I am authorized to state that Mr. Chief Justice William A. Lee concurs with me in this opinion.