#### Hamilton, Appellee, *v.*Hamilton, Appellant.

(No. 3904

Decided May 19, 1947.)

*Messrs. Miller & Miller*and *Mr. Robert P.*Duncan, for appellee. *1*

*Messrs. Dargusch, Garen, Greek <& King,*for appellant.

Nichols, J.

Prior to their marriage in Kentucky in 1932, Lillian Hamilton was a resident of Columbus, Franklin county, Ohio, and W. E. Hamilton was a resident of Knox county, Tennessee. • After their marriage, husband and wife returned to their respective domiciles and during the marriage relation each continued to reside at the domicile acquired prior to marriage, although they visited together for short *331periods in Columbus, Ohio, and Knox county, Tennessee. 1

On February 10, 1940, pursuant to tbe provisions of Section 8426, Code of Tennessee, W. E. Hamilton obtained a decree of divorce from bis wife, in Knox ■county, Tennessee, on the ground that sbe, without reasonable excuse, wilfully absented herself from him for two years and refused to remove with him to Tennessee. In that action Lillian Hamilton was served by publication only, as provided by the Code of Tennessee. Sbe did not appear or make any defense to that action and in due course tbe court found tbe allegations of tbe complaint to be true and decreed “that tbe bonds of matrimony heretofore subsisting between tbe complainant and defendant be forever and perpetually dissolved and that tbe complainant be restored to all tbe rights of an unmarried man.”

At tbe date of that decree there was in full force and effect Section 8449, Code of Tennessee,, which read as follows: •

“If the bonds of matrimony be dissolved at tbe suit of tbe husband, the defendant shall not be entitled to dower in tbe complainant’s real estate, nor to any part of bis personal estate, in case of bis intestacy, nor to alimony.” ,

On October 23, 1940, Lillian Hamilton instituted an action against W. E. Hamilton in tbe Chancery Court of Knox county, Tennessee, seeking to set aside, on tbe ground of fraud, tbe divorce decree above referred to and in her action sbe alleged facts which, if proven, would have entitled her to that relief and also entitled her to a divorce and permanent alimony, for which sbe also prayed dn her bill of complaint. In tbe caption to such bill sbe represented that her residence and domicile was in Knox county, Tennessee, and in the *332bill she averred that W. E. Hamilton, at the time he-filed his bill for divorce, well knew she was a resident of the state of Tennessee.

In her complaint she prayed also for an injunction-restraining and preventing W. E. Hamilton from selling and disposing of “his property in the state of' Tennessee, or the state of Ohio, or elsewhere” pending-the further orders of the court. Such injunction was granted upon the pauper oath of complainant. Subsequently, the court, on motion of W. E. Hamilton and' on oral testimony, found that complainant was not entitled to prosecute the action and have the injunction remain in force upon the pauper oath, and ordered the complainant to give cost bond and injunction bond,, in default of which the case would be dismissed. She-gave bond as fixed by the court.

W. E. Hamilton was duly served with summons in-that action and filed his answer to the complaint, in-which answer he denied the allegations of fraud set up In the complaint, and alleged that for a period of' years the complainant had registered and voted in Columbus, Ohio, thus declaring her residence in Ohio. That allegation was not denied by complainant either-by pleading or on the hearing.

The Chancery Court of Knox county, Tennessee,, upon complainant’s application, allowed her to amend her original bill so as to set up a claim for homestead' rights in the real estate owned by the defendant, “in addition to alimony which she seeks in this case for her future support and maintenance.” ■

By its final decree, entered January 17, 1941, after hearing on the pleadings and evidence, the Chancery Court found that the complainant failed by the weight of the testimony to make out the allegations and charges in her bill, and further found that the com*333plainant never had purposed to move to the state of Tennessee and reside or live with the defendant, as his wife, in that state, and that the procurement of divorce by the defendant, in Knox county, Tennessee, was not fraudulent and void but should “remain in full force and effect,” and thereupon dismissed complainant’s bill and dissolved the injunction previously granted.

A petition to rehear and enter a decree in her-favor in accordance with the prayer of the original bill was filed by the complainant, considered by the-court and disallowed and overruled, February 3,. 1941. No appeal was prosecuted by Lillian Hamilton, to the findings, judgment and'decree of the Chancery Court of Tennessee and the same became final.

The instant action was instituted by Lillian Hamilton against W. E. Hamilton in the Court of Common Pleas, Division of Domestic Relations, Franklin county,. Ohio, on June 17, 1943, the prayer of her petition being:

“Wherefore plaintiff asks that alimony for her sustenance and expenses during the pendency of the suit be granted her, and that she be decreed reasonable alimony out of the property of the defendant, William E. Hamilton, and that he be enjoined from disposing of his property, and for such other relief as she may be entitled to at law or equity. ’ ’

Defendant was duly served with summons and copy of the petition in Franklin county, Ohio, and on motion a temporary restraining order was allowed and defendant ordered to pay $100 per month as temporary alimony and $250 for expense money.

Before any further proceedings were had in this ease, the defendant died on July 2, 1943, and R. H. Leonard was appointed administrator of his estate, at *334Knoxville, Tennessee. On November 17, 1943, Walter R. Snyder was- appointed ancillary administrator by the Probate Court of Franklin county, Ohio. A motion to revive the action was filed by plaintiff on November 24, 1943.

Over the objection of the ancillary administrator, the court heard the motion to revive, permitted the plaintiff to introduce evidence of the divorce decree entered by the Tennessee court, revived the action, overruled defendant’s demurrer to the petition, and ■heard the case on its merits, the ancillary administrator by answer having. set up the judgments and decrees of the Tennessee courts, above referred to, and having alleged that the right of the plaintiff to alimony out of the property of the deceased defendant, W. E. Hamilton, had been fully adjudicated and determined by such judgments and decrees. Upon such final hearing the Franklin county court awarded plaintiff $7,500 as permanent alimony out of the estate and property of W. E. Hamilton, deceased.

In this appeal by defendant on questions of law thé following errors are assigned for reversal of the judgment of the Common Pleas Court and for final judgment for defendant:

1. The Common Pleas Court erred in reviving the action.

2. The trial court erred in overruling the demurrer to the petition.

3. The trial court erred in finding that the action' was not barred by the judgment of the court granting .-a divorce to W. E. Hamilton and the judgment of the Chancery Court of Knox county, Tennessee.

4. The trial court erred in awarding judgment for $7,500 to plaintiff in lieu of alimony and property rights in the property of W. E. Hamilton.

*335For an understanding of the claims made by the parties to this appeal, we first set forth the allegations of the petition, omitting the caption and referring • to the prayer thereof, as quoted above, without repetition:

“Petition.

“Plaintiff has been a *bona fide*resident of the state of Ohio for more than one year last past and has been a *bona fide*resident of the county of Franklin for more than thirty days last past.

“Plaintiff says that on the 8th day of August, 1932,, she was married to the defendant, William E. Hamilton, at Newport, Kentucky; that no children were born of said marriage. . . ;

“First cause of action.

“Plaintiff says that defendant ever since their marriage has failed and willfully neglected to provide plaintiff with the common necessities of life, so that plaintiff has been compelled to live upon the charity of her brother and her own exertions, although defendant had the ability to provide her with the common necessities of life.

“Plaintiff says that the defendant has paid her less than $100 a year since the date of their marriage. Plaintiff further says that about May, 1942, defendant disposed of approximately 3200 acres of land in the state of Tennessee and received therefor a consideration of approximately $35,000; that defendant is also possessed of 2,500 acres .of land in the state of Tennessee of the value of approximately $25,000, and 70 acres of coal land located near Athens, Ohio, of the approximate value of $5,000. Plaintiff further says that prior to August 1932, defendant was the owner of approximately 5,700 acres of land in the state of Tennessee, which was slate, marble and timber *336land, and 70 acres of coal land near Athens, Ohio; that after their marriage, defendant made Columbus, Ohio, his home for several months at a time, returning- to Knoxville, Tennessee, telling plaintiff that he was unable to support her and leading her to believe that fhe would make a home for her as soon as he realized ••any money from his properties; that defendant would write endearing letters to plaintiff, promising her that money would be realized from his properties for the mutual benefit of plaintiff and defendant. Plaintiff further says that after defendant realized moneys from the sale of said property, he did not give her any money or did not make any provision for her to live with him in the state of Tennessee; that by reason of defendant’s promises, plaintiff has been embarrassed and chagrined.

C Second cause of action.

* ‘Plaintiff says that the defendant, William E. Hamilton, has in disregard of his marital duties, for more than three years last past, been willfully absent from plaintiff.”

In our opinion, the petition states only a right or p.laim for alimony based on an existing marital relationship of the parties, and, therefore, its filing instituted an action for support, maintenance and expenses, as distinguished from alimony by way of division of property, which alimony can be allowed only on a claim of terminated marital relationship. There is no allegation in the petition that the marital relationfship had terminated, nor could the court grant a ■divorce after the death of the defendant. No mention as made of the decrees of the Tennessee, courts, although the plaintiff well knew that the validity of the divorce granted to W. E. Hamilton had been confirmed by the decree in the action she had instituted to set the same aside.' y

*337The prayer of the petition in the instant case is for alimony out of the property of the deceased defendant, based, of .course, on the facts stated in the petition. True, the prayer asks for such other relief as plaintiff may be entitled to at law or in equity, but the action is not one in chancery. The injunction sought and obtained was ancillary to the primary relief to which plaintiff might be entitled under the. allegations of her petition. The petition in this case having alleged only facts entitling plaintiff to allowance for her sustenance, support and expenses during the marital relationship, and not entitling her to a division of property, it follows that upon the death of defendant the action could not be revived against the ancillary administrator of the defendant, because the right of a wife to be supported by her husband ceases on his death, and her rights, if any, in the husband’s propérty, are then such as are provided by the laws of descent and distribution. As long as the marital relation exists (aiid there is no allegation to the contrary in this petition), the court’s jurisdiction is limited to an allowance for support, maintenance and expenses, during the separation. *Materazzo*v. *Materazzo,*139 Ohio St., 36, 37 N. E. (2d), 967.

The petition in the instant case was evidently carefully drawn with the view of contesting in the Ohio courts the validity of the Tennessee divorce decree, in the event the defendant would set up the Tennessee decree under a claim of *res judicata.*The death of defendant before that issue was raised made it necessary for plaintiff to change her cause of action.

In our opinion the trial court could not revive an action upon a right which was not asserted in the petition, and was in error in receiving evidence of a fact not asserted in the petition, to wit, the fact of the *338Tennessee divorce, the validity of which plaintiff is now driven to assert if any benefit is to be derived from this litigation. It is difficult to see how she can rely on that divorce as a valid termination of the marital relationship without also being bound by the effect of that divorce granted for her own aggression, *i. e.,*being barred of all rights to alimony out of the property of her former husband, as provided by the provisions of the Code of Tennessee, above quoted.

The fact that the court received such evidence clearly demonstrates that something additional to the cause of action stated in the petition was essential to the maintenance of the acti'on after the death of W. E. Hamilton. Thus thé court revived a cause of action not stated in the petition. For this there .is nq authority of law.

From what we have said, it necessarily follows that the demurrer filed by the ancillary administrator to the petition should have been sustained, and prejudicial error intervened in that respect.

Not only for the-reasons above stated, but for the further reason that the rights of the plaintiff to permanent alimony were finally adjudicated in the Chancery Court of Tennessee, the judgment of the trial court here is contrary to law under defendant’s plea of *res judicata.*The Chancery Court of Tennessee had jurisdiction of the persons of both parties to that action, as well as jurisdiction of the real estate of W. E. Hamilton, situate in that state. By plaintiff’s separate action against her former husband, brought in the Tennessee Chancery Court which had jurisdiction to grant her alimony as prayed for in her petition, the decree entered against her.in that state is binding against her here and must be given full faith and credit in the courts of Ohio and elsewhere in the United *339States. There is no evidence in this record by which the jurisdiction of the Tennessee Chancery Court over the subject matter or person of either party can be impeached. *Williams*v. *North Carolina,*325 U. S., 226, 89 L. Ed., 1577, 65 S. Ct., 1092, 157 A. L. R., 1366. Plaintiff had a full hearing on her action in such Chancery Court. The court whose jurisdiction she invoked found no fraud on the part of W. E. Hamilton in his divorce action, confirmed the decree therein, and dismissed her petition.

But the trial court here, while recognizing the decree of the Chancery Court of Tennessee as final so far as the divorce obtained by W. E. Hamilton was concerned (as the court must have done before it could have granted the allowance of permanent alimony), took the view, from something said in the chancellor’s opinion, that the property rights of the wife were not adjudicated. In this we do not. concur. The statement of the chancellor, referred to by the able trial judge in the instant case, is no part of the decree. The Chancery Court had before • it for adjudication the entire relief sought by Lillian. Hamilton, its decree necessarily adjudicated all her rights to such relief, and she did not prevail. We cannot subscribe to the proposition that a party who fails to obtain relief in an action instituted by him may, nevertheless, select another jurisdiction and relitigate his rights to such relief.- He is as much bound by the decree when he fails as when he prevails. . .

In the instant case the award of alimony was made, in part at least, out of the property of decedent, situate in the foreign jurisdiction where plaintiff’s rights therein had been finally adjudicated. Such award is contrary to law under the circumstances of this case.

The judgment of the trial court is reversed for the *340prejudicial errors to which reference has been made here, and final judgment is entered for the defendant.

*Judgment reversed.*

Wiseman, P. J., and Montgomery, J., concur.

Nichols, J., of the Seventh Appellate District, and Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.