Opinion
No. 37176
Decided March 28, 1962.
Divorce and alimony — Amendment of statute — Eliminating aggression as prerequisite to allowance of alimony — Does not preclude consideration of aggression in awarding alimony.
The amendment of Section 11993, General Code (later Section 8003-17, General Code, and now Section 3105.18, Revised Code), eliminating aggression as a prerequisite to the allowance of alimony in a divorce proceeding, does not preclude a court, in the exercise of its equity powers, from considering the element of aggression in making an award of alimony.
APPEAL from the Court of Appeals for Summit County.
Plaintiff instituted an action for divorce in the Common Pleas Court of Summit County, charging his wife, the defendant, with gross neglect of duty and extreme cruelty. Plaintiff alleges further in his amended petition that the defendant was the record owner of certain described real estate, but that, in fact, the plaintiff was the sole owner thereof. In his prayer, he asks for a divorce, that he be found to be the true owner of the real estate, and for such other relief as he may be entitled to.
In her answer, defendant denies that plaintiff was the sole owner of the real estate and alleges ownership in her of an undivided one-half interest therein. Defendant's cross-petition, in addition to alleging grounds for divorce, alleges also that she has an undivided one-half interest in the real estate and prays for a divorce and "for such other and further relief as are just and proper."
The allegations of the cross-petition are denied in plaintiff's answer thereto.
After trial on the issues joined by the pleadings, the Court of Common Pleas dismissed the cross-petition of the defendant and found that "the defendant has been guilty of gross neglect of duty, and that, by reason thereof, plaintiff is entitled to a divorce." The journal entry of the Court of Common Pleas, in addition to granting a divorce to the plaintiff, recites in part as follows:
"That there was no fraud on the part of the defendant, nor any mistake on the part of the plaintiff, concerning the transfer of said undivided one-half interest in the real estate from plaintiff to defendant, but that it would be manifestly unfair to permit the defendant to retain said undivided one-half interest, in view of her aggression, and the fact that this property originally belonged to plaintiff."
The court then awarded to the plaintiff, as alimony, all the defendant's interest in the real estate, ordered the defendant to convey all her interest in the premises to the plaintiff and ordered the plaintiff, simultaneously therewith, to pay to the defendant the sum of $2,000.
It is conceded in the briefs and oral argument of the defendant in this court that she complied with the order of the Court of Common Pleas by executing a deed to the real estate involved to the plaintiff and drew down the $2,000 deposited by the plaintiff to her favor with the Clerk of the Court of Common Pleas.
Defendant thereafter perfected an appeal to the Court of Appeals for Summit County. The Court of Appeals, in the absence of a bill of exceptions, affirmed that part of the judgment of the Court of Common Pleas granting the divorce but reversed that part of the judgment allowing alimony. In its entry as to reversal, the Court of Appeals said that "the action of the trial court in considering the element of aggression in its award of alimony or division of property was contrary to law."
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Olds Olds, for appellant.
Mr. E.H. Hauenstein, for appellee.
No appeal having been taken by the defendant from that part of the judgment of the Court of Appeals affirming the granting of the divorce, no question as to the correctness of such part is before this court.
The journal entry of the Court of Common Pleas is reasonably susceptible of the interpretation that the only things considered by that court in awarding alimony to the plaintiff were the aggression of the defendant and the fact that this property originally belonged to the plaintiff. The journal entry of the Court of Appeals, however, recites, as the basis of reversal, that the trial court was in error "in considering the element of aggression in its award of alimony."
The judgment of the Court of Appeals presents the following question of public or great general interest: Is a domestic relations court precluded by the present statutes from considering the element of aggression in awarding alimony in a divorce case?
Prior to 1951, the alimony statutes (Sections 11990 and 11993, General Code) required that a finding of aggression on the part of one party be a prerequisite to the awarding of alimony to the other.
By the revision of the domestic relations statutes in 1951, all reference to aggression was eliminated therefrom. Section 8003-17, General Code (now Section 3105.18, Revised Code), was enacted and read, in part:
"The court may allow such alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either at the time of the decree."
Thus is raised the question of whether the deletion of specific reference to aggression precludes the court from considering it at all and thus limits the court, in its consideration of an award of alimony, solely to those elements listed in Section 3105.17, Revised Code.
There can be no doubt that the change in the statute eliminated aggression as a prerequisite to the allowance of alimony. Clark v. Clark, 165 Ohio St. 457; Gage v. Gage, 165 Ohio St. 462. This court has held, in those cases and in others, that it was the apparent legislative intent to vest the trial court with full equity powers in the granting of a divorce, in the allowance of alimony or in a division of property. Judge Zimmerman said in the opinion in DeMilo v. Watson, Exr., 166 Ohio St. 433, an opinion unanimously concurred in by the other members of the court, that "these amendments removed the limitations on the powers of the court in alimony and division of property matters in divorce proceedings which had previously existed and their effect is to permit the court a free and full exercise of its general equity powers to adjust property rights between the opposing spouses as it determines will serve the ends of justice."
Having granted full equity powers to the court in deciding a domestic relations case, it is unlikely that the General Assembly intended at the same time to take from that court the right to consider one factor that certainly would be inherent in any consideration of equities. The writer knows from his own experience the impossibility of listening to testimony elicited in a divorce case to prove the grounds for divorce and of then eliminating that testimony from his mind in considering the allowance of alimony. We do not believe that the General Assembly intended to require any such mental gymnastics of a judge. It intended to "eliminate the element of aggression as controlling the discretion" of the court, as we said in Gage v. Gage, supra, but, in our opinion, there was no intent to eliminate the element of aggression as one element affecting the discretion of the court.
The General Assembly in Section 3105.18, Revised Code, first provided that the court may allow such alimony "as it deems reasonable to either party." Certain guides are then set out for which the court in making its determination should have "due regard." We conclude that the General Assembly intended the court to look at the entire picture of the marriage being dissolved and then to have due regard to certain enumerated factors in particular. The whole factual situation constitutes one bundle of sticks. In our opinion, the General Assembly did not intend for the court, either trial or reviewing, to attempt to tear the bundle apart.
Therefore, such part of the judgment of the Court of Appeals as reversed the allowance of alimony is reversed and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed in part.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS and O'NEILL, JJ., concur.
HERBERT, J., not participating.