OPINION
By BARNES, P. J.
The above-entitled cause is' now being determined as an error proceeding by reason of plaintiff’s appeal on questions of law from the judgment of the Court of Common Pleas, Domestic Relations Division, Franklin County, Ohio.
On June 15, 1942, plaintiff filed her petition against the defendant, Davis, and some fifteen other defendants, praying for alimony, temporary and permanent, out of the money, property and assets of the defendant Davis, described" in the petition, either in his possession or in the possession of the defendant firms. Plaintiff’s action was one for alimony alone. Defendant’s answer was a general denial. The trial court found the allegations of plaintiff’s petition to be true, and that the defendant was guilty of gross neglect of duty toward the plaintiff, and further, had abandoned plaintiff without [107]*107good cause on March 16, 1942. The Court held by reason of the above that plaintiff was entitled to a division of the property and awarded her $21,500.00 cash and the cancellation of a note. The Court further held that the Reno divorce must be recognized.
Thereafter, within due time, plaintiff, through her attorneys gave notice of appeal on question of law and thus the case was lodged in our Court.
Appellant’s assignments of errors are stated under 12 separately stated and numbered specifications. Counsel in their briefs have reclassified these assignments under four separate headings as follows:
I. The parties are not divorced.
II. The trial court did not have jurisdiction to make a division of the property of the defendant.
III. The trial court erred in denying plaintiff an allowance for her expenses and attorney fees.
IV. Award of the trial court to the plaintiff is inadequate and unequitable.
We can at once take up these assignments and we will do so in order.
The first raises the issue that the parties are not divorced.
This question was not presented through the pleadings, but was gone into very fully in the evidence.
It appears from the record that a divorce had not been granted at the time plaintiff filed her petition for alimony. The petition contains the allegation that on a day named the defendant abandoned her and under the pretense of going to Hot Springs for his health, went to Reno, Nevada, for the purpose of procuring a divorce. The petition' sets out in detail the attending facts as to defendant’s acts and conduct in going to Reno.
The petition further alleged that plaintiff, after she had been abandoned by the defendant, ascertained that defendant for a period of one to two years had been keeping company with another woman. It is disclosed from the evidence that this woman also made the trip to Reno, and that defendant now claims to be married to her. At the time of the filing of plaintiff’s petition for alimony, plaintiff alleged on information and belief that defendant was in Reno for the purpose of procuring a divorce; that he had no grounds upon which to base any action for divorce, and further, that the trial court in that state had no jurisdiction to hear the action.
Defendant filed answer in September, 1942. As heretofore stated this answer was a general denial. No averment was [108]*108contained therein setting up the defense of divorce. This, we think, was essential to a presentation of this issue.
It is not necessary for the plaintiff to raise this issue in support of her claim for alimony. She did in her recital of historical facts allege that she believed defendant was in Reno for the purpose of bringing an action for divorce. Now this is not the equivalent of alleging that he had obtained the divorce. It was supporting of the allegation of abandonment.
It was not essential that defendant make this question an issue by averring in his answer that he was divorced. If it was desired to raise the question as to the effect of divorce upon the question of alimony, then it was necessary to bring the issue into the case by answer.
Not having done so, the issue stands on the allegation of plaintiff’s petition as an action solely for alimony and not for a division of property as is permitted in actions of divorce.
The above recitals and conclusions were not raised either in oral argument or through the briefs. This is probably due to an inadvertence or through a difference of opinion on the legal proposition.
By. reason of this fact we will take up and consider the question just the same as though the issue was presented in the pleadings that the defendant claims to be divorced by the action of a court in the state of Nevada.
The evidence presented in the record very fully and adequately shows that defendant’s claimed domicile in Reno was a sham and that he did not have a bona fide residence or domicile within that state.
The conclusion is irresistible that the defendant went to Reno for the sole and only purpose of procuring a divorce; that he took up the residence in some apartment and there bided his time for filing his petition. The defendant sought to have the plaintiff assist him in his procurement of a divorce, but she did not so do. In at least one of his letters he spoke about getting through and getting back home. As soon as he procured his divorce he hastened back home. No one can read the record and have any other idea than that the defendant’s-, going to Reno and his stay there was purely for the purpose of bringing his action for and procuring a divorce, and that there was always the intention to return to his Ohio home as soon as he got the divorce.
The courts have universally held that this conduct does not constitute a domicile. As a definition of the term “domicile”, we make reference to 14 O. Jur., p. 564, §3. Reference is also made to the case of In re estate of Stephan, 31 Abs 457, 459:
[109]*109“In law domicile means the place where one has voluntarily fixed his habitation, not for a temporary or special purpose, but with the intention of making it his permanent home- and to which, whenever he is absent, he intends to return.”
Bouvier’s Law Dictionary.
“A domicile can only be changed by making a new home with intention of abandoning the old and to adopt the new."
We also refer to the case of District of Columbia v Murphy, 82 L. Ed., 338 Supreme Court of the United States.
Under the record and the law there is no difficulty in determining that the defendant-appellee in the' instant case was not a bona fide resident of Reno, either at the time when he made his application and filed his petition for divorce or when he was granted the decree.
The legal question presented is whether or not under the full faith and credit provisions of the United States Constitution the trial judge was bound to recognize the divorce decree procured by defendant in Reno.
If so, then the parties were divorced; if not, then there was; no divorce. This principle of law is well recognized by all parties. The trial court determined that under the full faith and’ credit provision he was bound to recognize the action of the Reno court and hence the parties were divorced. Counsel for appellee claim that the court in making this finding is conclusively supported by the case of Williams v North Carolina, 317 U. S., 287; 63 S. Ct. 207.
This was a criminal action originating in the state of North Carolina, wherein the defendants, Williams and Hendricks, were jointly indicted for the crime of bigamy, tried, convicted and sentenced, and thereafterwards affirmed in the various state courts, finally being taken to the United States Supreme Court on a writ of certiorari. A casual reading of this case would lead to the conclusion that it was analogous to the instant case.
A more careful reading will disclose that the decision of the United States Supreme Court in the Williams case Was. based on a different question. In the instant case the theory of no divorce is based on the claim that the same was fraudulently procured by false representation of domicle within the state of Nevada. Judge Douglas, in deciding the Williams case, expressly determines that the question of bona fide domicile is not involved. On page 291 of the opinion reference is made-to the case of Bell v Bell, 181 U. S., 175,
[110]*110“a, case in which this court held- that a decree of divorce was not entitled to full faith and credit when it had been granted on constructive service by the courts of a state in which neither spouse was domiciled. But there are two reasons why we do not reach that issue in this case. In the first place, North Carolina does not seek to sustain the judgment below on that ground. Moreover, it admits that there probably is enough evidence in the record to require that petitioners be considered ‘to have been actually domiciled in Nevada.’
“In the second place the verdict against petitioners was a general one; hence, even though the doctrine of Bell v Bell, supra, were to be deemed applicable here, we cannot determine on this record that petitioners were not convicted on the other theory on which the case is tried and submitted, viz., the invalidity of the Nevada decree because of Nevada’s lack of jurisdiction over the defendants in the divorce suit.”
At this point it is necessary to state that a casual reading might give the impression that the last paragraph of the above quotation refers to jurisdiction on the question of bona fide domicile. The Court goes on to say:
“Accordingly, we cannot avoid meeting the Haddock v Haddock issue in this case by saying that the. petitioners acquired no bona fide domicile in Nevada. If the case had been tried and submitted on that issue only we would have quite a different problem as Bell v Bell indicates.” (Emphasis ours.)
In the case of Haddock v Haddock, 201 U. S. 562, we find the following legal principle announced:
“A suit for divorce brought in a state other then that of domicile of matrimony against a wife who is still domiciled therein is not a proceeding in rem justifying the court to enter decree as to the res or marital relation entitled to be enforced outside of the territorial jurisdiction of the court.”
This was the legal principle the United States Supreme Court was discussing in the Williams case, supra, and it was the Haddock case, supra, that was reversed through the decision in the Williams case.
The principle announced in the case of Bell v Bell, supra, which in its factual situation is similar to the instant case was not reversed and hence is still the law.
The Supreme Court of the United States in the Williams case, supra, did not enter final judgment but reversed and remanded for further proceedings according to law. The defendants were again tried in the North Carolina state court on [111]*111the theory that the defendants perpetrated a fraud on the Nevada courts in representing that they had a bona fide domicile within that state. This brought the case directly within, the provisions of the case oi Bell v Bell, supra.
- The defendants were again convicted and the conviction sustained by the court of last resort in the state of North. Carolina. This last decision of the North Carolina courts is not reported, but counsel for plaintiff have presented to us a typewritten copy of the court’s opinion. This opinion very fully reiterates what is apparently the universal rule that where a Reno divorce is obtained through a fraudulent misrepresentation of domicile within that state, the full faith and credit provisions of the United States Constitution do not require that such divorce be recognized in any other state.
The Williams case is again pending in the United States Supreme Court on application for a writ of certiorari following the second conviction of the defendants. Since the decision, in the Williams case by the United States Supreme Court many state courts have had occasion to consider its scope, and universally it has been declared that the Williams case does; no more than reverse the case of Haddock v Haddock, 201 U. S., 562, and leaves undisturbed the case of Bell v Bell, 181 U. S. 175.
At the risk of repetition, we want to make it clear that the, case of Haddock v Haddock denied the right to secure a divorce in a state other than that of domicile of matrimony where the spouse is still domiciled in that state. In other words, a husband or wife could not leave the domicile of matrimony and-go to another state and therein acquire a domicile, no matter how long he or she resided therein, that would entitle him or her to bring an action for divorce within that state where’ the other spouse still resided in the domicile of matrimony.
The reversal of that decision now removes that objection to the procurement of a divorce in a state other than that of the matrimonial domicile. In other words, a husband or wife may remove to another state and after having obtained a bona fide domicile within the state, and a compliance with all other conditions as required under the laws of that state, may petition for and obtain a divorce within the state in which such person has taken up a bona -fide domicile.
This still leaves the question as decided in the case of Bell v. Bell, surpa, that the person must have a bona fide domicile within the state to which he removes before he has a right to bring an action for divorce within that state. In other words,, he or she may have been within the state the requisite period. [112]*112as prescribed under the laws of that state, but there still remains the question as to whether or not such person has acquired a bona fide domicile therein. (Emphasis ours.)
It is practically a matter of common knowledge, that people who go to Reno to obtain a divorce do so because they possibly have no grounds that could be asserted within the state of the matrimonial domicile and experience teaches that it is easy to obtain divorces in Nevada.
As bearing on the question of the scope of the Williams case, supra, we refer to the following.cases:
Oberlander v Oberlander, 39 N. Y. S. (2d) 139;
Girard v Girard, 41 N. Y. S. (2d), 77;
Jiranek v Jiranek, 39 N. Y. S. (2d), 523;
In re Bingham’s Will, 39 N. Y. S., 756;
McCarthy v McCarthy, 39 N. Y. S. (2d), 922;
Schnabel v Schnabel, 39 N. Y. S. (2d), 972;
McKee v McKee, 39 N. Y. S. (2d), 859;
Standish v Standish, 40 N. Y. S. (2d), 538;
Gibson v Gibson, 41 N. Y. S. (2d), 598;
Reese v Reese, 40 N. Y. S. (2d), 468.
All of the above are New York cases, and while not from the court of last resort in that state, yet we find the same well considered and pointing'out the scope and limits of the case of Williams v North Carolina, supra.
In many of the cases attention is called to the fact that the decision of the Supreme Court goes no farther than to reverse the case of Haddock v Haddock, supra. Practically all refer to the fact that the United States Supreme Court' case of Bell v Bell is still the law as it relates to the full faith and credit ■ provisions under the United States Constitution in divorce actions where the question of bona fide residence is involved. Cases from other states along the same line are the following.-
Hooker v Hooker, (Conn.), 32 Atl., (2d) 68;
Bowditch v Bowditch, 314 Mass., 410, (50 N. E. (2d) 65);
Wolff v Wolff, (N. J.) 34 Atl. (2d), 150;
Wilkes v Wilkes, (Ala.), 16 So. (2d), 15;
Commonwealth, ex rel. Esenwein v Esenwein, (Penn.), 35 Atl. (2d), 335.
The cases cited above including the New York cases discuss the question present in the instant case and universally hold that the question of bona fide domicile may be inquired into without violating the full faith and credit clause of the United States Constitution.
[113]*113We also refer to 14 O. Jur. 133, p. 536. The section reads as follows:
“In view of the elementary rule that jurisdiction of • the subject matter is essential to the validity of a judgment or decree, it is held that the full faith and credit clause of the federal constitution does not apply to a judgment or decree rendered by the court of a foreign state, in a divorce proceeding, without jurisdiction of the subject matter, and that such question of jurisdiction is open to inquiry whenever the fact of such divorce is brought in question in the courts of another state.”
Also Section 134:
“In order for a court of another state to acquire such jurisdiction of the subject matter in a divorce proceeding as to entitle a judgment rendered therein, to recognition in the courts of Ohio, it is essential that either one or both of the parties have a bona fide domiciliary residence in such state. Therefore, a decree of divorce under a statute of another state authorizing the divorce where neither of the parties is domiciled therein is of no force or effect in Ohio; at least, where the parties have their domicile in this state.” (Emphasis o'urs.)
“As a general rule, the residence of a person in another state for the sole purpose of conferring jurisdiction of a divorce proceeding will not be recognized as valid. It is held accordingly that where parties are resident in this state, and one of them removes to and resides in another state for the sole purpose of maintaining there an action against the other for a divorce, such residence, not being bona fide, is not sufficient to confer jurisdiction upon the courts of such foreign state and that an action so instituted will be disregarded by the, courts of Ohio.”
Van Fossen v Van Fossen, 37 Oh St 317.
In re Estate of Stephan, 31 Abs 457.
Counsel for defendant-appellee in their brief cite the following cases with arguments:
Williams v. North Carolina, 317 U. S. 287;
Slapp v Slapp, 143 Oh St 105; (Ohio Bar, Apl. 3, 1944);
Slapp v Slapp, Court of Appeals, Summit Co., 73 Oh Ap 444; (Counsel for appellant has appended in their brief copy of opinion of the Court of Appeals in the above entitled cause.)
In re Holmes Estate, (N. Y.) 52 N. E. (2nd), p. 424.
We have already discussed the case of Williams v North Carolina, supra, and pointed out why it is not applicable to the [114]*114instant ease. As heretofore stated, the Williams case makes no determination on the question of bona fide domicile.
We next take up the case of Slapp v Slapp, 143 Oh St 105. The Supreme Court does not touch our question for the following reason: the question was unmistakably in the. case until it reached the Supreme Court. In the trial court, Mrs. Ruth E. Slapp filed her petition seeking temporary and permanent alimony on the ground of gross neglect of duty and extreme cruelty. An order was made for temporary alimony of $152.67 per month, which payments defendant regularly made. The case continued for a matter of three years without being brought to trial. In March, 1942, the defendant, Maurice E. Slapp, went to Reno and after remaining there the requisite period, filed an action for divorce and in due time the same was granted. Mrs. Slapp did not enter her appearance in the Nevada action, nor was she personally served with summons. The service was by publication. Two days following his divorce he married in Reno a woman as his second wife. A few days later Mr. Slapp and his second wife returned to Akron and there took up their residence. In June following, the plaintiff, Ruth E. Slapp, filed an amended petition charging the defendant with gross neglect of duty, extreme cruelty and adultery, and praying for divorce, continued temporary alimony and on final hearing, permanent alimony. . '
Personal service was made upon the defendant.
Upon hearing the trial court determined that the divorce procured by the defendant in the state of Nevada was null and void, granted a divorce to the plaintiff, Ruth Slapp, making a division of the property, fifty-fifty. The defendant husband gave notice of appeal on question of law.
The Court of Appeals determined that the trial court was in error in denying the validity of the Reno divorce brought as an issue in the case through defendant’s answ'er. The Court of Appeals sustained^ the judgment of the trial court in all other particulars.
Both parties gave notice of appeal, but the wife did not perfect her appeal. The case came to the Supreme Court on defendant’s appeal. It appears at once that by reason of the fact that the wife did not perfect her appeal, all questions relating to the Reno divorce were eliminated. The Supreme Court so stated in the opinion by Hart, J.
On page 110 of the opinion appears the following:
“Since the Court of Appeals found that the divorce granted to the defendant in Nevada was valid under the full faith and [115]*115credit clause of the Constitution, which finding in the absence of appeal has become final, this court will assume for the purpose of decision in this case that the decree was valid and severed the marital relationship of the parties.”
The Court of Appeals in this same case held that the Reno divorce was .valid and that under the full faith and credit clause of the Constitution the trial court was bound to recognize it and was in error in its determination that there was no divorce. This opinion is not reported, but we always accept opinions or articles from any source for the purpose of assisting us in analyzing the question before us. In reading the'opinion of the Court of Appeals appended to the brief of counsel for appellee, it clearly appears that the Court construes the case of Williams v North Carolina, supra, differently from what we do.
It may be presumptuous, and probably is, to question the clarity of a reported decision of the Supreme Court of the United States. Probably we should admit our own ineptness that we did find it difficult to determine the scope of the opinion in this case as announced by the Judge delivering the same. We have heretofore analyzed the Williams case, supra, and do not deem it advisable to do so again.
The next case referred to in the brief of counsel for- appellee is Lawson, Appellant, v. Davis, decided by the New York Court of Appeals on November 24, 1943. No reference was made as to where this case could be found. We find what we conclude is the same case entitled, “In re Holmes Estate”, 52 N. E. (2d), 424. We are quite sure this is the same case because the date is the same and Davis and Lawson are referred to as parties. This was a New York case and being a decision by the Court of Appeals, which is the highest court within the state, becomes very important if it overrules the decisions of the many other New York Courts whose decisions are listed in earlier pages of this opinion.
Quoted excerpts from the opinion as found in the brief give the impression that the case is probably supportive of defendant-appellee’s contention. However, a careful reading of the case will disclose that the court’s conclusion was based entirely upon the lack of evidence to support the contention. This is set out very fully in syllabus 8, which reads as follows:
“A Nevada- divorce decree was supported .by presumption of jurisdiction, and hence, in absence of proof that plaintiff [116]*116in such action had not acquired bona fide domicile in Nevada sufficient to support jurisdiction, New York Court required to give decree full faith and credit.”
The opinion was by Lehman, C. J., and at the bottom of page 429 and on top of page 430, appears the statement of the Judge from which the syllabus was formulated.
We have now discussed all the authorities cited by counsel for defendant-appellee. The only case that-is really supporting is that in the Court of Appeals of Summit County, wherein was decided the case of Slapp v Slapp, supra. In addition to cases already cited supporting the theory of plaintiff-appellant, we are referred to the case of Williamson v. Osengon, 232 U. S. 619, (58 L. Ed. 758). The opinion was by Mr. Justice Holmes and therein we find the following:
“The essential fact that raises a change of abode to a change of domicile is the absence of any intention to live elsewhere, (Story, Conflict of Laws, Section 43); or, as Mr. Dicey puts it in his admirable book, ‘the absénce of any present intention of not residing permanently or indefinitely in’ the new abode.”
Also, District of Columbia v Murphy, 86 L. Ed., 338, opinion by Mr. Justice Jackson of the United States Supreme Court:
“How permanent was his domicile in the community from which he came? Had it long been a family seat, or was he there a bird of passage? Would a return to the old community pick up threads of close association? Or has he so severed his relations that his old community is as strange as another? Did he pay taxes in the old community because of his retention of domicile which he could have avoided by giving it up? Were they nominal or substantial?”
We have thus far examined all authorities cited bearing on the question of domicile and its relation to the full faith and credit provisions of the United States Constitution relating to divorce actions. After examining and reviewing the numerous, cases cited on the question of domicile, we are more firmly committed to the view that the issue of divorce is not really involved in the case for the reason that the same was not presented through the pleadings. If we are correct on this question, then it necessarily follows that the Court had no right to make his determination of the question of defendant’s divorce [117]*117Under this situation, the case stood as an application for alimony predicated under §11997 GC.
This is the section which provides for alimony alone and not a division of property. Unquestionably, this was the form of action brought by the plaintiff and had defendant desired the trial court to determine the legal effect of divorce on plaintiff’s cause of action, it certainly was his duty to bring that issue into the case by pleading. Not having done so, it is our judgment that the trial court had no authority to adjudicate the case upon the theory that a divorce had been granted to the defendant-appellee.
By reason of the fact that this question was not raised in the briefs we have very fully considered the case the same as though the issue had been presented through the pleadings. Under the evidence and the law we arrive at the same conclusion and thereby it becomes immaterial as to the proper theory upon which the case should be decided. Under either theory, we find the trial .court was in error in finding that there was a subsisting Nevada divorce.
This brings us to the second assignment of error:
“The trial court did not have jurisdiction to make a division of the property of the defendant.”
This is unquestionably the law under the form of action brought by the plaintiff-appellant. Admittedly her petition was filed under the provisions of §11997 GC.
Sec. 11998 GC describes the limitation of the former section. The Supreme Court of the state of Ohio in the case of Durham v Durham, 104 Oh St 7, very definitely determines that the trial court is not authorized to make a division of the husband’s property in an action for alimony' alone, but is confined by §11998 GC to make an award for maintenance and support. In the opinion will be found a discussion as to the distinction between the section authorizing maintenance and support and the section authorizing division of property where divorce is granted. Under the authority of this Court we must hold that the Court was in error in making a division of property, but under the issues it should have made the allowance to the plaintiff for maintenance and support. Counsel for defendant-appellee argues that the plaintiff did not present the necessary evidence for the court to make an allowance to the plaintiff for maintenance and support. We cannot agree with this contention. Counsel for defendant also argue that plaintiff’s case was presented entirely upon the theory of a [118]*118claim for division of property such as was made by the court. Again, we cannot accept this theory. It is true that under an application for alimony alone much of the evidence would be similar or even identical in kind as if the court was called upon to make a division of property where a divorce was involved.
For the same reason as announced relative to assignment No. 1, we determine that the Court was in error under assignment No. 2.
The third assignment of error is as follows:
“The trial court erred in denying plaintiff an allowance for expenses and attorney fees.”
Plaintiff’s petition contained a prayer for such allowances. Sec. 11994 GC is the Code section prescribing the procedure for allowance of temporary alimony, including expenses of suit. In the instant case this claim was not pressed until the -last day of the trial. At that time counsel for plaintiff presented evidence as a predicate for this temporary allowance. The trial court denied the allowance upon the ground that the application was not presented in proper time. He did say at that time that notwithstanding his refusal to make a separate allowance, he was taking into consideration this question in determining the gross allowance to be made to the plaintiff as alimony. It probably would be proper for the Court to say that plaintiff was not prejudiced if in fact she received in the gross allowance an amount sufficient to cover expenses of trial and permanent alimony. However, it is very difficult for a reviewing court to determine this question. Under any situation we think it preferable that the trial court make specific allowance for temporary alimony where an application for such is made. It is our judgment that an application for temporary alimony may be pressed at any time before the final disposition of the case by the trial court. We can see no objections to plaintiff waiting on her application for temporary alimony until the closing hours of the trial for the reason that at the time the Court would be better able to determine the question of the expenses of suit. It certainly can make no difference to the defendant whether the application filed in connection with the petition is brought to hearing before the trial starts or at its close. Counsel for defendant refer us to two New York cases, and under their language would support appellee’s theories. However, the statute in New York is entirely different from the Ohio statute. In New York the allowance is made on the theory that the applicant is not able to pay. her own expenses or maintain herself during the pend-' [119]*119ency of the action. Of course this is not the theory under.the Ohio law.
Since we are reversing, this question becomes unimportant except as a suggested guide when the case is retried.
Assignment No. 4 reads as follows:
“Award of the trial court to the plaintiff is inadequate and •inequitable.”
The members of our Court are not in accord on this question. We are again confronted with the question that is not important except as it may be suggestive in the retrial of the case. Again this question will not be important since when retried it will be upon an entirely different theory. We make no further comments under this assignment.
We reluctantly determine a reversal in this case for the reason that according to our past experience the trial court has been so uniformly correct in its conclusions that it is not easy to find that he is in error in this case.
The judgment of the trial court will be reversed and the cause remanded for a new trial.
GEIGER, J., concurs.