[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
IN BANC.
Suit for divorce by James M. Rodda against Ethelyn C. Rodda, wherein the defendant was awarded a decree of separate maintenance with an allowance of $100 a month. The plaintiff, after having obtained a foreign divorce decree, filed a motion to have separate maintenance decree, vacated on ground that the foreign divorce decree had wiped out the decree of separate maintenance. From a decree vacating the separate maintenance decree, the defendant appeals.
AFFIRMED.
The principal question on this appeal is whether a decree for separate maintenance rendered by a court
of this state in favor of a wife, survives a subsequent decree of divorce granted to the husband by a Nevada court. There is also involved a question, which must first be determined, as to whether the Nevada decree has extra-territorial validity.
On March 17, 1945, the Circuit Court for Multnomah County, Oregon, in a suit for divorce brought by the plaintiff and respondent, Dr. James M. Rodda, and in which Mrs. Rodda, the defendant and appellant, sought a decree of separate maintenance based upon cruel and inhuman treatment, entered a decree in her favor of separation for an unlimited time from her husband's bed and board with an allowance of $100.00 a month. In the year 1946 Dr. Rodda sued his wife for divorce in the District Court of the State of Nevada for the Second Judicial District, Washoe County, Nevada, and on June 19 that court awarded him a decree of divorce on the ground that he and his wife for three consecutive years immediately preceding the filing of such suit had lived separate and apart without cohabitation. (See § 9478.06, Nevada Comp. L., 1929, as amended by Ch. 23, Stat. of Nevada, 1939.) Mrs. Rodda, who was and is domiciled in this state, was served with summons by publication and by mail. She did not appear in the suit, and the Nevada court never acquired jurisdiction of her. The proceedings in that court were ex parte.
On December 13, 1946, Dr. Rodda filed in the Circuit Court for Multnomah County a motion, supported by affidavit, to vacate that part of the separate maintenance decree requiring him to pay his wife $100.00 a month, on the ground that the Nevada divorce wiped out that decree. There was an order to show cause why the motion should not be allowed, in response to which Mrs. Rodda filed a showing substantially to the effect
that the Nevada divorce decree was invalid and not entitled to full faith and credit in this or any other state. After a hearing, both upon affidavits and oral testimony, the court entered an order vacating the separate maintenance decree as of June 19, 1946, the date of the Nevada divorce decree. From that order Mrs. Rodda has appealed.
First. It is contended that the Nevada court acted without jurisdiction, and that its decree, therefore, is not entitled to full faith and credit under Art. IV, § 1, of the Constitution of the United States, which provides: "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state."
We are dealing with a matter of federal cognizance, and it is today established by the most recent decisions of the Supreme Court of the United States that a divorce decree granted by a state to one of its domiciliaries is entitled to full faith and credit in its sister states even though the other spouse was given notice of the divorce proceeding only through constructive service; that jurisdiction depends upon domicil; and that, while the finding of domicil by the court that granted the decree is entitled to prima facie weight, it is not conclusive in a sister state but may be relitigated there, the burden of undermining the verity which the foreign decree imports resting upon the assailant. Estin v. Estin, 334 U.S. 541,92 L.ed. 1078, 68 S.Ct. 1213, 1 A.L.R. 2d 1412; Esenwein v.Commonwealth, 325 U.S. 279, 89 L.ed. 1608, 65 S.Ct. 1118, 157 A.L.R. 1396; Williams v. North Carolina, 317 U.S. 287,87 L.ed. 279, 63 S.Ct. 207, 143 A.L.R. 1273, 325 U.S. 226, 89 L.ed. 1577,65 S.Ct. 1092, 157 A.L.R. 1366. In our opinion the appellant has failed to sustain that burden.
Jurisdiction in the Nevada court to decree a dissolution of the marriage depended upon the bona fides of Dr. Rodda's domicil in that state. His complaint alleged that he was a citizen of the United States and of the State of Nevada; that he had, for more than six weeks immediately before commencing suit, with the bonafide intent to make Nevada his home for an indefinite period of time, resided, been physically present, and domiciled in Washoe County, Nevada; and that he still so resided and was domiciled therein.
The defendant's evidence consisted largely in a showing respecting incidental and collateral matters, all of which together failed to show that Dr. Rodda did not, in good faith, acquire a Nevada domicil. Dr. Rodda himself admitted that he was aware that Nevada was a state in which divorce was comparatively easy to obtain, and that he went there with the intention of procuring a divorce. He had, however, other and more creditable reasons. He had made a special study of radiology at Georgetown University, and one of his professors there had told him that there was only one radiologist in the State of Nevada, and that Nevada should, therefore, be a good field for his practice. He arrived in Reno, Nevada, on March 26, 1946, and thereafter, for about two months, was employed there as assistant to the Nevada radiologist of whom his professor had told him. On April 23, 1946, Dr. Rodda filed an official application for a certificate authorizing him to practice medicine in Nevada, and therein stated his intention to reside in Nevada. On May 5, 1946, he successfully passed the Nevada Medical Board examination and was admitted to practice. From May 2 until November 22, 1946, he was employed as assistant by a firm of Reno architects. He registered as an elector in the State of Nevada and voted there in the
election of November 5, 1946. About March 15, 1947, he filed a federal income tax return, in which he gave his residence as Nevada. He maintained a bank account at Reno. From April 12, 1947, he practiced as a radiologist at Las Vegas, in Clark County, Nevada, and was still so practicing at the time of the hearing in the instant proceeding.
We are satisfied that Dr. Rodda established a bona fide
domicil in Nevada. That being so, the fact that he went there for the purpose of procuring a divorce is immaterial. Walker v.Walker, 45 Nev. 105, 108, 198 P. 433; 3 Nelson, Divorce and Annulment, (2d ed.) § 33.34. The Nevada court, by virtue of Dr. Rodda's domicil in that state, had jurisdiction in his suit to dissolve the marriage. On this branch of the case the court is unanimous.
Second. In view of the foregoing this court is required to hold that the parties to this suit are no longer husband and wife and have not been since June 19, 1946, the date of the Nevada decree. But the "full faith and credit" which Oregon must give to the Nevada decree does not compel a decision that the separate maintenance decree has been wiped out. That is a question of Oregon law. Such is the effect of Estin v. Estin, supra, decided June 7, 1948. That case involved a New York separate maintenance decree in favor of the wife, and a subsequent Nevada divorce decree obtained by the husband, as in this case, on constructive service. The husband later moved in the New York courts to terminate the alimony provisions of the separate maintenance decree by reason of the Nevada decree. The motion was denied and judgment granted the wife on her motion for arrears of alimony, which judgment was affirmed on appeal. 296 N.Y. 308,73 N.E.2d 113. Certiorari having been granted by the
Supreme Court of the United States, that court affirmed the New York court's judgment, holding that the conclusion of the highest court in New York "that a support order can survive divorce and that this one has survived petitioner's divorce" is "binding on us, except as it conflicts with the Full Faith and Credit Clause"; and that Nevada could not "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." The court expressly approved Bassett v. Bassett, (C.C.A. 9th) 141 F.2d 954, which held that a provision in a Nevada divorce decree which attempted to release the husband from his obligations under a prior separate maintenance decree of New York — the Nevada court never having acquired jurisdiction of the wife — was not a bar to an action brought by the wife on her New York judgment in the Nevada Federal Court.
"The result of this situation", the Supreme Court said, "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". Estin v. Estin, supra, 334 U.S. at p. 549.
Three years before the Estin case, on May 21, 1945, the Supreme Court decided Esenwein v. Commonwealth, supra, on facts practically identical, except that the Pennsylvania court had found that the husband did not have a bona fide domicil in Nevada when he obtained his divorce. For that reason the court refused to relieve the husband from a prior Pennsylvania support order. The Supreme Court affirmed and said in the course of its opinion:
"Since, according to Pennsylvania law, a support order does not survive divorce, Commonwealth v. Parker, 59 Pa. Super. 74; Commonwealth v. Kurniker, 96 Pa. Super. 553, the efficacy of the Nevada divorce in Pennsylvania is the decisive question in the case. * * * The Pennsylvania Supreme Court rightly indicated that if merely the Nevada decree had been in evidence, it was entitled to carry the day. But the Supreme Court found that on the entire showing there was convincing countervailing evidence to disprove petitioner's intention to establish a domicil in Nevada." Esenwein v. Commonwealth, supra, 325 U.S. at pp. 280, 281.
It is clear from the foregoing decisions that upon the question now presented this state is free to pursue its own policy uninhibited by federal constitutional restrictions. The courts, however, are not charged with the responsibility of shaping the state's policy. That duty rests with the legislature. Our sole function is to construe the statute for the purpose of determining whether the provisions of the separate maintenance order and the altered status of the parties to this proceeding can coexist. We do not inquire whether the Nevada divorce decree of its own force terminates the Oregon decree, for the Supreme Court of the United States has held in the Estin case that it cannot; but we must determine whether, under Oregon law, the former husband is still obligated to support his former wife under that decree, notwithstanding the marriage relation has come to an end.
The separate maintenance statute, Oregon Laws, 1941, Ch. 408, provides for a decree of separation from bed and board, permanent or limited or unlimited in time, of "married persons" (§§ 1 and 2). When such decree has been granted the court is further empowered to render a decree for "the recovery from a party in fault such amount of money, in instalments, as may be just and proper for such party to contribute to the maintenance of the other" (§ 7). When the separation
is for an unlimited time (as here) "if either party believe that the cause for separation has ceased to exist, he or she may apply to the court for an order vacating the decree or modifying it on such terms as may appear to be just and proper" (§ 4). And likewise the court shall have the power to set aside, alter or modify so much of the decree as may provide for "the maintenance of either party to the suit" (§ 10).
It seems to us sufficiently obvious 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. The statute speaks of a decree for the separation of "married persons". The decree for maintenance is made to depend upon the decree of separation from bed and board. The latter could have no possible efficacy after a divorce (since then the parties could not lawfully cohabit), and neither, therefore, could the former.
In short, the marriage relation constitutes the foundation of the order, and, upon the dissolution of that relation, or at least upon a showing of that fact to the Oregon court, it must be held that the order has lost all vitality.
It is pertinent to advert to what this court said on the subject of alimony in Huffman v. Huffman, 47 Or. 610, 614,86 P. 593, 114 Am. St. Rep. 943:
"* * * To understand the principle whereby alimony was given in divorce proceedings, a cursory examination of the rules originally applicable thereto in the country from which we derive the principles of common law may not be deemed inappropriate. In England, prior to 1858, no absolute judicial divorces were granted; but the ecclesiastical permitted legal separations, which were known as `a mensa et thoro': Stewart, Mar.
Div. § 200. courts, assuming jurisdiction of the marital relation,
As an incident of such divorces and based on the husband's duty to support the wife, the church courts granted her, when she was not in fault, alimony, which consisted of an allowance that was measured by the social standing of the parties, proportioned by the wife's necessities and to the husband's financial ability, usually amounting to one half of their joint income; but, if there were children of the union, the allowance was generally limited to one third of such income: Stewart, Mar. Div. § 362. The ecclesiastical courts having been abolished during the Commonwealth, the authority to award alimony was expressly conferred upon the equity judges, whose decrees in compliance therewith were ratified after the Restoration by an act of Parliament: 1 Bishop, Mar. Div., § 1394. The law of England relating to marriage and divorce was brought by the colonists to this country, where the ecclesiastical courts were never recognized as possessing authority to allow alimony. As these immigrants did not bring their courts with them, the law adverted to, and which is here known as the unwritten or common law of the several States, remained in abeyance until called into activity by the creation of tribunals on which jurisdiction was directly or by implication conferred: Bishop, Mar. Div., §§ 116, 121. A few courts of last resort in the United States have maintained that a grant of power to sever the marital relation carries with it by necessary intendment authority to allow permanent alimony in the absence of any enactment to that effect: Stewart, Mar. Div. § 363. 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, which legislation is in general declaratory of the ecclesiastical law: 2 Bishop, Mar. Div. § 1039; Stewart, Mar. Div. § 364; Weber v. Weber, 16 Or. 163
(17 P. 866); Houston v. Timmerman, 17 Or. 499
(21 P. 1037, 4 L.R.A. 716, 11 Am. St. Rep. 848)."
See, to the same effect, McFarlane v. McFarlane, 43 Or. 477,481, 73 P.2d 203, 75 P.2d 139, in which it was held that where a wife obtained a decree of divorce from an Oregon court on constructive service, her husband having deserted her and left the jurisdiction, the court was without power thereafter, when he returned to the state and was personally served with process, to enter a decree awarding alimony to the wife.
In Alexander v. Alexander, 13 App. D.C. 334, 45 L.R.A. 806, the court had occasion to review the subject of divorce and alimony at common law, and concluded its discussion by saying:
"Alimony has been defined to be `the allowance which a husband by order of court pays to his wife, living separate from him, for her maintenance. Bishop, Marr. Div. § 549.' Bouvier, Law Dictionary, title, Alimony. It is therefore, and it has always been held to be, apart from the express provisions of statutes authorizing divorce, an incident merely of separation by judicial decree from bed and board, and never of divorce from the bond of matrimony. See Crane v. McGinnis, 1 Gill J. 463, 19 Am. Dec. 237. For at common law, and by the dictates of reason, in the absence of statutory enactment, to justify the allowance of alimony, the relation of husband and wife must continue to subsist, although the parties are separated from each other."
The foregoing (quoted with approval in Holmes v. Holmes, 81 U.S. App. D.C. 132, 155 F.2d 737, 166 A.L.R. 1000) harmonizes with the view of the law of this subject as heretofore enunciated by this court. See, also, Spain v. Spain, 177 Iowa 249, 252,158 N.W. 529, L.R.A. 1917D 319, Ann. Cas. 1918E 1225; McCoy v.McCoy, 191 Iowa 973, 974, 183 N.W. 377.
There are two sources of power in this state for
the award of alimony, and only two so far as the prior decisions of this court go. One is the statute which authorizes an allowance of alimony to the party not in fault in a divorce suit (§ 9-914 (3), O.C.L.A., as amended by Ch. 228, Oregon Laws, 1947); the other is the separate maintenance statute. The first is alimony after divorce, but the award may be made only when the court grants a decree of annulment or dissolution of the marriage. McFarlane v. McFarlane, supra; Saurman v. Saurman,131 Or. 117, 122, 282 P. 111; Hengen v. Hengen, 85 Or. 155,164, 166 P. 525; Taylor v. Taylor, 70 Or. 510, 519,134 P. 1183, 140 P. 999. And see State ex rel. Tolls v. Tolls, 160 Or. 317,323, 85 P.2d 366, 119 A.L.R. 1370. The second is alimony — termed maintenance — during the continuance of the marriage relation. And separate maintenance proceedings "being special and statutory, the court has only such powers as the legislature has granted it". Noble v. Noble, 164 Or. 538, 552, 103 P.2d 293.
By the enactment of Ch. 408, Oregon Laws, 1941, the legislature did not, in our opinion, intend to change the essential nature of alimony as incident to a judicial separation as it was known at common law. The statute makes many things specific which were formerly left to judicial discretion. It sets forth the grounds upon which a decree of separate maintenance may be based, and goes into detail in a number of other matters. It enlarges the scope of the relief by affording it to the husband as well as to the wife. But there is nothing to indicate that the statutory separation from bed and board with the attendant right to maintenance was to have legal characteristics and incidents differing from the common law legal separation "a mensa etthoro", one of which was indubitably the dependence of the right to maintenance upon
the continued subsistence of the relation of husband and wife.
Those courts which, as it seems to us, have given the question the best consideration, having in mind the nature of alimony as incident to a judicial separation, have held that a decree for separate maintenance cannot survive a subsequent decree of divorce. In Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227, it appeared that the parties were married in South Carolina and later moved to Alabama. The wife was forced to leave her husband by his ill-treatment of her and returned to South Carolina, where she sued him for separate maintenance. He appeared in the case and contested it. The court granted her a decree. Subsequently the husband sued for and was granted a divorce in Alabama on the ground of abandonment. Service was by publication. After his death the wife brought an action of debt in Alabama to recover upon her South Carolina judgment for maintenance, and it was held that she was entitled to recover the arrears up to the time of the Alabama divorce but not beyond, the court saying (20 Ala. 649):
"We are of the opinion that both decrees may stand, so far as in their results they are not incompatible with each other. The subject-matter and object of each are wholly different. The first seeks to enforce the obligations and duties springing out of the relation of marriage; the second, entirely to annul that relation, and having effected the contemplated object, puts a period to the operation of the first, which is necessarily dependent upon that relation."
In McCullough v. McCullough, 203 Mich. 288, 168 N.W. 929, upon a similar state of facts, the Michigan
court reached the same conclusion largely upon the authority of the Alabama decision. The McCullough case is followed in Shaw v.Shaw, 332 Ill. App. 442, 75 N.E.2d 411. The Massachusetts court in Rosa v. Rosa, 296 Mass. 271, 5 N.E.2d 417, held that a foreign decree of divorce, which it accepted as valid under its statute (this being before the decisions in the Williams cases), terminated a prior separate maintenance order of Massachusetts, at least after an order for its vacation was entered, the court saying that proceedings for separate support "are designed to secure the temporary support of a wife * * * while the marriage relation exists and the cause for separation continues."
In Bloedorn v. Bloedorn, 64 App. D.C. 199, 76 F.2d 812, there was a District of Columbia separate maintenance order followed by a divorce obtained by the husband in Virginia. It was held that the husband's obligations under the separate maintenance decree should be terminated as of the date when he applied for vacation of that decree in the District of Columbia courts. In Cardinale v. Cardinale, 8 Cal.2d 762,68 P.2d 351, where there was a California separate maintenance decree followed by a Nevada divorce, it was held proper to terminate the maintenance as of the date of the divorce. See, also, State v.Lynch, 42 Del. 95, 28 A.2d 163; Commonwealth v. Parker,59 Pa. Super. 74; Commonwealth v. Kurnicker, 96 Pa. Super. 553; Esenwein v. Commonwealth, supra; Herrick v. Herrick, 55 Nevada 59, 25 P.2d 378, and numerous decisions cited in both the prevailing and dissenting opinions in Simonton v.Simonton, 40 Idaho 751, 236 P. 863, 42 A.L.R. 1363.
The same principle was applied, although under different circumstances, in the recent case of Calhoun v. Calhoun, 70 Cal.App.2d 233, 160 P.2d 923. The case arose out of a Nevada divorce obtained by a former resident of California from his wife. The wife afterwards sued him in California attacking the validity of the Nevada divorce on various grounds and seeking, among other things, an award of support money. It was argued that, as the Nevada court only granted a divorce and did not attempt to pass on the question of the support of the wife, the California courts could award the wife support money without violating the full faith and credit clause of the Constitution. The court said: "The answer to this argument lies in the fact that the power to award support grows out of the marital relation", citing Howell v. Howell, 104 Cal. 45, 37 P. 770, 43 Am. St. Rep. 70, where it was said: "After the judgment granting the divorce the plaintiff was no longer the wife of the defendant; and he owed her no longer any marital duty." It is worthy of note that the Howell case was cited and relied upon by this court in McFarlane v. McFarlane, supra.
There are decisions to the contrary, most of which, however, do not discuss the effect of the applicable statute or the nature of alimony and its dependence upon the marriage relation. SeeWilliams v. Williams, 96 Ky. 397, 29 S.W. 132; Robinson v.Robinson, 250 Ky. 488, 63 S.W.2d 605; Schimek v. Schimek,109 N.J. Eq. 395, 157 A. 649. The New Jersey court, while holding that a subsequent divorce does not terminate a previous decree for separate maintenance, holds somewhat inconsistently that a decree for maintenance cannot be granted after divorce, inasmuch as such a decree is dependent upon the existence of the marital relation between the parties. Magowan v. Magowan,57 N.J. Eq. 195, 198, 39 A. 364. And
see Gullett v. Gullett, 80 U.S. App. D.C. 73, 149 F.2d 17. The English court in Bragg v. Bragg, L.R.P. Div. 20 (1925), found itself able to say that separate maintenance survived divorce by treating the words "husband" and "wife" in the statute as mere "descriptio personarum". The basis of the decision of the New York Court of Appeals in the Estin case is somewhat obscure. (See Mr. Justice Frankfurter's dissenting opinion in that case, 334 U.S. 549, 1 A.L.R. 2d 1412) Mr. Justice Jackson, who also dissented, thought that under New York law a separate maintenance decree could not survive divorce, and it is of some interest to observe that on February 27, 1948, some ten months after the decision in the Estin case by the New York Court of Appeals, the Domestic Relation Court of the City of New York, upon substantially identical facts, came to exactly the opposite conclusion in Liss v. Liss, 77 N.Y.S. 2d 242. The Estin case was not cited, but prior New York decisions were. Weissberger v.Weissberger, 40 N.Y.S. 2d 416 (1943), is a similar decision. In Simonton v. Simonton, supra, there are dicta supporting the survival doctrine, but all that the case actually decided is that a decree for a support of a wife and minor children continues in effect up to the time that it is directly modified by reason of a subsequent divorce. The proceeding was not commenced until after the ex-husband's death. Other cases which are cited in support of the survival doctrine appear rather to go upon the theory that a court of equity has inherent jurisdiction to entertain an independent action for alimony after divorce. See, for example,Wagster v. Wagster, 193 Ark. 902, 103 S.W.2d 638. The subject will be found discussed in the following annotations: 42 A.L.R. 1375; 166 A.L.R. 1004; 1 A.L.R. 2d 1423.
We have not thought it important to notice the distinction made by some of the courts between cases where the divorce is obtained on substituted service and those in which the court granting the decree had personal jurisdiction of the wife. In the latter class of cases — and particularly where the wife herself obtains the divorce — there may be additional grounds, such as res judicata, estoppel or waiver (see, e.g., Holmes v. Holmes, supra) for holding that a prior separate maintenance decree is terminated. Such cases do not, we think, affect the fundamental soundness of this decision.
The courts which hold that maintenance does not survive divorce are not in entire agreement on when the obligation under a maintenance decree terminates, some holding that it terminates as of the date of the foreign divorce decree (see cases cited in 1 A.L.R. 2d 1435), others that termination takes effect as of the date a proceeding to vacate the maintenance decree is commenced. See Bloedorn v. Bloedorn, supra. In our opinion the former is the more logical view.
It is suggested that Oregon courts have inherent jurisdiction to award alimony after a divorce obtained in a sister state on constructive service. That is a question that has never been directly passed upon in this state and which, like most of the other really important questions in this case, has not been argued. The existence of such a jurisdiction may be difficult to reconcile with the reasoning employed and the principles approved in the Huffman and McFarlane cases previously cited. But the question is not before us and we express no opinion upon it. The case comes to us as an appeal from the Circuit Court's decree vacating the decree of separate maintenance as of the date of the Nevada divorce decree in response to a
motion for that purpose filed by the respondent, Dr. Rodda. Mrs. Rodda has not asked the court to make a new decree granting her alimony after divorce, but has stood and stands upon the ground that the Nevada divorce decree is invalid and therefore cannot impair the Oregon separate maintenance decree. We think it will be time enough to determine the question of inherent jurisdiction when such a case arises. Our present duty is to pass on the case which was presented to the Circuit Court and to this court.
As previously stated, the determination of Oregon's policy touching divorce and alimony is the province of the legislature, not of the courts. The existing separate maintenance statute was passed in 1941, and it is not likely that the problem presented by the facts of this case was then in the minds of the legislature or of those who drafted the measure. It could not then have been a serious problem, for that was before the Williams cases had overruled Haddock v. Haddock, 201 U.S. 562,50 L.ed. 867, 26 S.Ct. 525, 5 Ann. Cas. 1. This state would then have been free to withhold recognition from a decree of divorce of a sister state obtained under the circumstances of this case. It could have held that, so far as Oregon is concerned, the parties to the suit were still husband and wife with every legal incidence pertaining to that relation. Today, however, under the new interpretation of Art. IV, § 1, of the Constitution of the United States, we are compelled to give full faith and credit to the Nevada "divisible" divorce, and so compelled, under the view we take of our own law, to hold that the consequences of the new status of the parties brought about by the divorce is the termination of the respondent's obligations under our own separate maintenance decree.
Of a similar result in Bloedorn v. Bloedorn, supra, the court said:
"* * * While appreciating the incongruity of this situation in fact, we must recognize its validity in law, under the faith and credit clause of the Constitution (Const. art. 4, § 1), and the statutory provisions and legal doctrines controlling the matter. The difficult remedy for this unwholesome condition may lie in a system of uniform divorce laws more liberal than the present statute of the District of Columbia."
It may be that the legislature of Oregon, if it is so minded, could adopt amendments, free from constitutional objections, to our separate maintenance statute, which would make it more difficult for husbands to free themselves of their obligations to support their wives, domiciled in this state, by going to another state and securing what have been referred to as "bargain counter" divorces.
Third. There are other objections to the decree of lesser importance which will be briefly considered. The Nevada court was not advised, either by the pleadings or otherwise, of the existence of the prior Oregon decree of separate maintenance. It is insisted that this was a fraud on the court, affecting its judgment to such extent that recognition thereof may and ought to be denied by the courts of Oregon. Fraud in the procurement of the judgment of a foreign state is recognized as ground for collateral attack upon the judgment. 3 Nelson, Divorce and Annulment, (2d ed.) §§ 33.30, 33.73; 27 C.J.S., Divorce, § 336; 50 C.J.S., Judgments, § 895; Bartholomae Oil Corp. v. Booth,146 Or. 154, 163, 28 P.2d 1083; Kissenbeck v. Kissenbeck,145 Or. 82, 85, 26 P.2d 58; Stimson v. Stimson, 140 Or. 507,515, 13 P.2d 368; Murray v. Murray, 6 Or. 17, 24. The fraud, however, must have been
in the nature of "fraudulent representations, designed and intended to mislead, with knowledge of falsity, and resulting in damaging deception". It must have "gone to the jurisdiction of the court and been extrinsic or collateral to the matter tried in the foreign action". 27 C.J.S., Divorce, § 336; 50 C.J.S., Judgments, § 895. It is said that the fraud must have been such that it prevented the party complaining from making a full and fair defense. Toledo Scale Co. v. Computing Scale Co.,261 U.S. 399, 421, 67 L.ed. 719, 43 S.Ct. 422. Be that as it may, it is apparent that the Nevada court's ignorance of the existence of the Oregon decree neither affected its jurisdiction nor its decision. Its jurisdiction was based upon domicil of the plaintiff in Nevada, and, as we have seen, such domicil was bonafide. Its holding that the parties, having lived separate and apart for three consecutive years, should be divorced, or, rather, that their marriage should be dissolved, was proper, under the Nevada statute, irrespective of what was the cause of the separation.
We are told that the trial court erred in permitting plaintiff's motion to vacate the decree to be supported by affidavits, and in denying defendant the right to take the depositions of witnesses. The practice of supporting and of opposing motions of this sort by affidavits is based upon statutory authority. O.C.L.A., § 4-201. There was no error in this respect. For the rest, the record does not show that the defendant was in any manner deprived of the right to take depositions.
It is argued that the evidence in the Nevada case (a transcript whereof is before us as an exhibit) did not establish that the living apart of the parties for three consecutive years had been "without cohabitation", as required by the statute. The judgment of a
court having jurisdiction may not be impeached collaterally because of insufficiency of evidence. 49 C.J.S., Judgments, § 432.
In accordance with these views the decree of the Circuit Court is affirmed. The proceedings being in equity and the circumstances what they are, it is ordered that the appellant shall receive her costs and disbursements.