Harris v. Harris , 71 Wash. 307 ( 1912 )

Morris, J.

Appeal from an order increasing an allowance to respondent for the support of the minor child of the parties. On May 31, 1910, a decree of divorce was entered in this action, providing, among other things:

“And the plaintiff be, and he hereby is, ordered and directed, until the further order of this court, to pay to the defendant, on the first, day of each and every month, the sum of $16, for the support of the minor child Cecil.”

No provision was made in the decree for the custody of the minor child, for the reason, doubtless, that the child was then and still is domiciled in the state of Illinois. Since the entry of this decree, both parties have become residents of the state of California. On March 20, 1912, respondent filed a motion, asking for a modification of the decree by increasing the allowance for the minor child. This motion was served personally upon appellant at his residence in California, and upon the attorneys who had appeared for him in the original action. Appellant appeared specially in response to this motion and challenged the jurisdiction of the court as to subject-matter and person. This challenge was denied, and an order entered increasing the allowance for the support of the child to $25 per month. The assignments of error submit the jurisdictional questions as raised below.

In our opinion the court below had ample jurisdiction as to both person and subject-matter. This question has been so recently before us that we do not regard it as necessary to enter upon a full discussion of the powers of the court in divorce cases where periodical alimony is provided for the support of minor children. In Poland v. Poland, 63 Wash. 597, 116 Pac. 2, we said:

“The jurisdiction of the court in divorce cases, where alimony is awarded for the support of children, is a continuing one, and the jurisdiction of both the parties and the subject-matter continues so long as there is a minor child whose welfare and maintenance are provided for in the decree.”

The same rule was announced in Dyer v. Dyer, 65 Wash. 535, 118 Pac. 634, where, in addition to following the Poland case, it was added: “These matters, from their very nature, invoke the equitable powers of the court, and the jurisdiction is a continuing one.” It need only be added that appellant’s contention, that the courts of Washington acquired no jurisdiction over his person by the service of the motion upon him in the state of California, is not well taken. Inasmuch as the court, by virtue of its original jurisdiction and its continuing decree, retained jurisdiction over both person and subject-matter, no original process was necessary to regain a jurisdiction never lost. That such a jurisdiction is retained and is not defeated by the departure from the state, is well settled. Laing v. Rigney, 160 U. S. 531; Lynde v. Lynde, 162 N. Y. 405, 56 N. E. 979, 76 Am. St. 332, 48 L. R. A. 679; De Vall v. De Vall, 57 Ore. 128, 109 Pac. 755, 110 Pac. 705; McSherry v. McSherry, 113 Md. 395, 77 Atl. 653, 140 Am. St. 428; Wells v. Wells, 209 Mass. 282, 95 N. E. 845, 35 L. R. A. (N. S.) 561.

Many cases might be cited holding with appellant, where the decree had become final. But where, as here, the decree is not final, but continuing, the original jurisdiction continues, and the court has as much power to order subsequent modifications as it had to enter a decree in the first instance. The only final feature of judgments of this character is as to each installment of alimony as it becomes due. As to these installments, the rights and liabilities of the parties become absolute and fixed at the time provided in the decree for their payment, and to this extent the judgment is a final one.

The order appealed from is affirmed.

Mount, C. J., Main, Ellis, and Fullerton, JJ., concur.