Schoennauer v. Schoennauer, 77 Wash. 132, 137 Pac. 325 (1913).

 132    SCHOENNAUER v. SCHOENNAUER.
                    Opinion Per CROW, C.J.           77 Wash.

      [No. 10892. Department Two, December 29, 1913.]
      FANNY SCHOENNAUER, Respondent, v. ARTHUR C.J.
                SCHOENNAUER, Appellant. «1»

                SCHOENNAUER v. SCHOENNAUER.               133
 Dec. 1913               Opinion Per CROW, C.J.

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

 134    SCHOENNAUER v. SCHOENNAUER.
                    Opinion Per CROW, C.J.           77 Wash.

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 iliness 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

                SCHOENNAUER v. SCHOENNAUER.               135
 Dec. 1913               Opinion Per CROW, C.J.

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, SS 989 (P.C. 159 SS 15), provides that,

"In granting a divorce, the court shall also make such
disposition of the property of the parties as shall appear just
and equitable, having regard to the respective merits of the
parties, and to the condition in which they will be left by
such divorce, and to the party through whom the property
was acquired, and to the burdens imposed upon it for the
benefit of the children, and shall make provision for the
guardianship, custody and support and education of the minor
children of such marriage."

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

 136    SCHOENNAUER v. SCHOENNAUER.
                    Opinion Per CROW, C.J.           77 Wash.

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:

"The question of importance discussed here is whether the
plaintiff can maintain this action. It is apparent that the
district court of Wyoming only had jurisdiction to decree a
divorce, and there was no adjudication of the property rights
of the plaintiff and defendant in the case before that court.
The disposition of the property between plaintiff and defendant
in this state must depend upon the law here. It is true,
as stated by counsel for defendant, that a decree of divorce
between the parties here puts the property matters at rest,
as determined in King, v. Miller, 10 Wash. 274 (38 Pac.
1020); but in that case the property rights were in issue, and
the court had jurisdiction to determine the same. The parties
and the subject matter of the litigation were before the court.
In the decree made by the Wyoming court, neither the
defendant nor the property was within the jurisdiction of the
court. The Wyoming court had jurisdiction over the status
of the plaintiff only, the defendant not being personally
served with process and not having submitted to the jurisdiction
of the court; and it seems that in such cases the wife
may afterward obtain from the court of the domicile of the
husband further relief as to the property and alimony."

Commenting on Ballinger's Code, SS 5723 (Rem. & Bal.
Code, SS 989), we further said:

"It is true, a decree for the disposition of the property of
the parties, upon the dissolution of the marriage, such as
shall appear just and equitable, and having regard to the
respective merits of the parties and to the condition in which
they will be left, provided for in SS 5723, Bal. Code, is
incidental to divorce; but it is not identical with it, or a
necessary part of it, and there should be sufficient reason shown
why such disposition of the property was not made pending
the action when the divorce was granted. The cause for such
disposition of the property of married persons, and the

                SCHOENNAUER v. SCHOENNAUER.               137
 Dec. 1913               Opinion Per CROW, C.J.

authority of the court to make such decree upon the respective
property rights, arise from the divorce - the dissolution of
the marriage status, - and we think it was appropriately done
here, and that the court had jurisdiction to try the cause."

While the case cited adjudicates property rights only, it
will be noted that Rem. & Bal. Code, SS 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:

"The pertinent question and the one question that really
affects appellant is the right of the court to enter a
judgment against him for the support of the minor child, and the
question resolves itself into this: Can a divorced wife bring
an action against her former husband for maintenance for a
minor child whose custody has been awarded to her? . . .
It is a well established rule of law, and, we think, uncontradicted,
that the maintenance of children is a matter which the
court can adjudicate at different times during the minority of
the child."

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:

"Clearly, the wife has every right, moral and equitable, to
be reimbursed to the amount of a just proportion of the
expense she has been put to in the performance of a duty which
equally belonged to both; and the technical legal reason on
which the contrary doctrine is based ought not to be
permitted to outweigh the evident justice of her claim. On
principle we believe the doctrine of the case from this court
[Gibson v. Gibson, supra] to be right, and, though strongly urged
to do so, we must decline either to overrule or modify it."

 138    McCLANAHAN v. McCLANAHAN.
                          Syllabus.                77 Wash.

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.