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[edit] Schoennauer v. SchoennauerThe following transcription is the case related to the divorce and support payment obligation between Arthur Schoennauer and his former wife, Fanny Sells Schoennauer as decided on 29 Dec 1913. It was a groundbreaking decision for its time in deciding jurisdiction and debt related to child support payments in out-of-state divorces. [edit] Text of Case Opinion Per Crow C.J.Case Reference: 77 Wash. 132 [No. 10892. Department Two. December 29, 1913.] Fanny Schoennauer, Respondent, v. Arthur C. J. Schoennauer, Appellant. (Reported in 137 Pac. 325.)
Appeal from a judgment of the superior court for King county, Dykeman, J., entered July 22, 1912, upon findings in favor of the plaintiff, in an action to recover for the support of a minor child. Affirmed. M.J. McGumness and Robert McMurchie, for appellant. McClure & McClure and Howard Waterman, for respondent. Crow, C. J. — Plaintiff and defendant were formerly husband and wife, and are the parents of a minor son, now about ten years of age. They lived in Chicago, Illinois, until December 17, 1906, at which time the husband moved to Seattle; his wife and child remaining in Chicago. On January 30, 1908, the husband commenced an action for a divorce in the superior court of Snohomish county. Service was made by publication. The wife defaulted, and on April 20, 1908, a decree was entered granting a divorce on the ground of abandonment. The complaint made no mention of the minor child or of any property rights, nor did the final decree contain any reference thereto. The child remained with, and has since been supported by the mother, who, on March 4, 1911, commenced this action in the superior court of King county, against her former husband, the defendant herein, to recover $1,200 expended by her in supporting the child, and to obtain an order requiring defendant to make monthly payments for future support of the child. From a judgment in plaintiff's favor for $400, and for the further sum of $10 per month to be hereafter paid, defendant has appealed. Appellant contends that the decree, which is not assailed, constitutes an adjudication to the effect that he was in fact abandoned by his former wife, and that she was in the wrong. He alleges that, after he came to this state, he requested his wife to join him; that he provided her with means for so doing, but that she at all times refused. Respondent alleges that she did not abandon appellant, but that he abandoned her; that she had no actual knowledge of the divorce action until long after the final decree had been entered; and that the appellant has remarried, for which reason she has refrained from attacking the validity of the decree. At the trial, the record in the action for divorce was, upon stipulation, admitted in evidence. The trial judge thereafter refused to admit any other evidence, further than such as would show what disbursements respondent had made in supporting the child, and what such support would hereafter cost. Respondent offered to show that, about three years after her marriage to appellant, she instituted an action for divorce in the courts of Illinois; that her action was prosecuted to a final judgment for separate maintenance, which judgment also awarded her custody of the child, and alimony payable monthly; that shortly thereafter, learning that appellant had sold his real estate and was about to leave for Seattle, she caused his arrest; that, by reason of his persuasion, she and appellant then resumed their relations as husband and wife; that, immediately thereafter, he, without warning, abandoned her and came to Seattle; that she wrote him repeatedly during the succeeding year; that he sent her railroad transportation to bring her to Seattle, but that she was too ill to travel; that her illness continued for several months; that she wrote appellant advising him that she would come to Seattle as soon as she was able to undertake the journey; that she did not hear from him thereafter; that she wrote him repeatedly; and that she had no knowledge of the divorce proceedings until after the entry of the decree. This and other offers made by respondent were excluded, upon appellant's objection. Evidence was admitted showing that the appellant had remarried, and disclosing his present income. The record before us is devoid of any suggestion that, in the action for divorce, at any time subsequent thereto, or in this proceeding, after respondent had subjected herself to the jurisdiction of the courts of this state, appellant attempted to obtain the custody of the child, offered to provide the child with a home, or contributed to its support. Appellant's sole contention is that, because the decree of divorce, which has not been assailed, was rendered on the ground that he had been abandoned by his wife, she was in fault; that she must be so considered for all purposes; that she has wrongfully retained the custody of the child, and that she is not entitled to any recovery herein. This contention is without merit and cannot be sustained. Whether it be assumed that appellant abandoned his wife, or that she abandoned him, the rights of their child would not be affected, nor would the appellant be relieved of the duties or obligations imposed upon him to contribute to its support. Conceding that the abandonment of appellant by respondent has been adjudicated by the superior court of Snohomish county, it would not follow that the minor child could not have been awarded to respondent, nor that suitable provision for its support at appellant's expense could not have been made, had the superior court of Snohomish county obtained the necessary jurisdiction to make proper orders for such custody and support. In his complaint for the divorce, appellant made no allegation whatever with reference to the child. He now insists that it was not necessary to do so, for the reason that respondent could only be served by publication, and that the courts of this state would not have personal jurisdiction of respondent, but would only have jurisdiction of the marriage status. The purpose of service by publication is to give notice to a defendant, and it must be assumed that a defendant upon receiving such notice may voluntarily appear and defend. Appellant could not assume, when preparing his complaint, that the respondent might not appear and subject herself and child to the jurisdiction of the court. The omission of any reference to the child in his complaint was not respondent's fault. We fail to understand any principle upon which it can be held that respondent's right to obtain compensation for supporting the child, or to obtain a decree for its future support, has been foreclosed by the decree of divorce upon which appellant now relies. Rem. & Bal. Code, § 989 (P. C. 159 § 15), provides that,
Where a divorce has been granted upon constructive service in a foreign jurisdiction, and without any adjudication of property rights, the courts of this state, upon obtaining jurisdiction of the subject-matter and the parties, may grant relief relative to property rights. In Adams v. Abbott, 21 Wash. 29, 56 Pac. 931, it appeared that the defendant had deserted his wife in the state of Wyoming; that she obtained a decree of divorce in that state upon constructive service; and that the decree made no disposition of their property rights. The parties owned real estate in this state, and thereafter the former wife brought an action in the courts of this state for a division of the property and for alimony. In passing upon the issues thus raised, we said:
Commenting on Ballinger's Code, § 5723 (Rem. & Bal. Code, § 989), we further said:
While the case cited adjudicates property rights only, it will be noted that Rem. & Bal. Code, § 989, to which it refers, also provides that the court shall make provision for the guardianship, custody and support and education of minor children. There seems to be no sound reason why the principle announced by this court relative to property rights should not be applied in this case. In Gibson v. Gibson, 18 Wash. 489, 51 Pac. 1041, 40 L. R. A. 587, this court said:
Again in Ditmar v. Ditmar, 27 Wash. 13, 67 Pac. 353, 91 Am. St. 817, where it appeared that a divorced wife had sued her former husband for expenses incurred by her in the support of their minor children, and also for their future maintenance and education, we sustained a judgment against the father for one-half the amount expended by the mother, and for the payment of a monthly sum in the future, saying:
Appellant insists that neither the Gibson nor the Ditmar case is pertinent, as in each of these the legal custody of the children had been awarded to the wife in a previous divorce decree. That circumstance does not preclude an application of the principle of those cases to the facts here shown. It is elementary law that the natural duty of a father imposes upon him a legal obligation to provide support for his minor children, and he cannot escape such duty by obtaining a decree of divorce from his nonresident and absent wife, upon constructive service, in an action in which he ignores the existence of his children, for whom he has made no provision, and whom he, in effect, abandons. The contention of appellant, if followed to its legitimate conclusion, would require us to hold that respondent is without remedy, although appellant has permitted her to retain the custody of the child, has not contributed to its support, and has ignored all parental obligation which the law has imposed upon him. This we cannot do. The judgment is affirmed. Parker, Gose, Chadwick, and Mount, JJ., concur. [edit] Sources/References
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