Opinion
No. 28608
Decided October 15, 1941.
Appeal — Judgment of reviewing court complete, final and reviewable, when — Divorce or alimony — Testimony or admissions of party, unsupported by other evidence, insufficient — Section 11988, General Code — Other evidence may be parol or documentary.
1. A judgment of a reviewing court is complete, final and reviewable when its action and instructions to the trial court are definitely stated, the reason therefor is clearly recited, no required action is omitted and the cause is remanded to the trial court for retrial.
2. Under the provisions of Section 11988, General Code, a divorce or a judgment for alimony may not be granted upon the testimony or admissions of a party unsupported by other evidence.
3. Such other evidence may be either parol or documentary, or both.
APPEAL from the Court of Appeals of Putnam county.
This action for alimony was filed in the Court of Common Pleas of Defiance county by the plaintiff, Emma P. Lesh, against the defendant, George Lesh. Upon application by the defendant a change of venue was allowed to Putnam county.
In her amended and supplemental petition the plaintiff states her complaint in part as follows:
"Plaintiff alleges that the defendant always has been, and still is, a resident of the state of Ohio.
"Plaintiff alleges that on or about the month of December [ sic], the defendant, for the sole purpose of obtaining a fraudulent decree of divorce from the plaintiff went to the county of Dade in the state of Florida and without establishing any residence in the state of Florida and having nothing in the form of a residence except the occupation of an automobile trailer, and after being in the state of Florida only five days, and without being an actual bona fide permanent resident of the state of Florida instituted an action in the Circuit Court of Dade county, Florida against this plaintiff for a divorce and falsely and fraudulently filed a complaint in said court against this plaintiff and alleged in said complaint that he was an actual bona fide and permanent resident of the county of Dade and the state of Florida, though in truth and in fact he was a resident of the state of Ohio, and said defendant falsely and fraudulently alleged in said complaint that the place of residence of this plaintiff, Emma Phoebe Lesh, was unknown to said George A. Lesh, although in truth and in fact the place of residence of said Emma Phoebe Lesh was well known to said George A. Lesh at said time and by virtue of said false and fraudulent statement pertaining to his lack of knowledge of the residence of said Emma Phoebe Lesh said George A. Lesh obtained an order from said Circuit Court of Dade county, Ohio [ sic], authorizing the notification of said Emma Phoebe Lesh of the pendency of said action by publication in a newspaper printed and published in said Dade county, Florida.
"Plaintiff alleges that the laws of the state of Florida then provided, and still provide, and have provided ever since the institution of said action for divorce in said Dade county, that the person making application for a divorce must be an actual bona fide and permanent resident of the state of Florida for more than ninety days immediately preceding the institution of said action for divorce.
"Plaintiff alleges that said George A. Lesh caused said action for divorce to be assigned for trial and at the trial of said action falsely and fraudulently testified before said court that he had been an actual bona fide and permanent resident of the state of Ohio [ sic] for more than ninety days immediately preceding the filing of his petition and thereby deceived the judge hearing said action and said court before whom said action was heard and determined entered a decree divorcing said George A. Lesh from said Emma Phoebe Lesh, which decree was entered on the seventh day of April, A.D. 1937.
"This plaintiff, Emma Phoebe Lesh, alleges that she had no knowledge of the pendency of said action in said Dade county, Florida until long after said decree of divorce was entered and that she received no notice whatever of the pendency of said action."
The defendant filed an answer admitting that he obtained a divorce decree in the state of Florida but denying at length that the decree was fraudulently procured.
In the instant case the Court of Common Pleas rendered a decree for the plaintiff.
Upon an appeal on questions of law the Court of Appeals reversed the decree and remanded the cause for "error in overruling motion for a new trial on the grounds that there was not the supporting evidence in behalf of plaintiff which is required by Section 11988, General Code."
The case is in this court for review upon the allowance of the plaintiff's motion to certify the record.
Mr. George A. Meekison, Mr. Otto W. Hess and Mr. David Meekison, for appellant.
Mr. A.P. Stalter and Mr. Franklin J. Stalter, for appellee.
The defendant has filed a motion asking this court to dismiss the plaintiff's appeal on the ground that the judgment rendered by the Court of Appeals is incomplete and therefore not final.
In its journal entry the Court of Appeals recited the above-quoted finding as to error in the record. Then it "ordered and adjudged that said judgment and proceeding be and the same are hereby reversed * * *." The entry concludes with the following language:
"It is further ordered that the lien of the plaintiff-appellee created by the judgment against the real estate of the appellant is removed and vacated. The certificate of said judgment filed in said Court of Common Pleas is null and void, and the clerk is directed to cancel said certificate of lien in Henry county, Ohio, by causing a notation of cancellation on said certificate of judgment lien on the margin of said certificate in the recorder's office of Henry county, Ohio.
"It is further ordered that this cause be remanded to said court for a new trial and for further proceedings according to law."
A study of this language fails to substantiate the defendant's contention. In the first place the action of the Court of Appeals and its instructions to the trial court are definitely stated. Secondly, the reason therefor is clearly recited. In the third place the Court of Appeals left undone nothing it was required to do. And finally, the cause was remanded to the trial court for retrial. Manifestly, the judgment is complete, final and reviewable. The cases cited by the defendant involve different language.
The next question involves Section 11988, General Code, which reads in part as follows:
"A divorce, or a judgment for alimony shall not be granted upon the testimony or admissions of a party unsupported by other evidence."
The only reversible error found by the Court of Appeals was a lack of the necessary supporting evidence. Was this correct?
The defendant does not contend that the supporting evidence required by the statute must be parol. Therefore, more precisely restated, the question is whether the record discloses either parol or documentary evidence tending to support the plaintiff. She insists that both are present.
The plaintiff introduced a certified copy of the record of the proceedings in the Florida action. This record supports the plaintiff's testimony in a number of important particulars. It discloses that in January 1937 the defendant filed a bill of complaint stating under oath that the address of his wife was unknown to him. This tends to substantiate the wife's claim that he intended to perpetrate a fraud upon her and the Florida court, inasmuch as there is testimony in the instant record to the effect that he was in communication with the members of his family and well knew his wife's address.
Furthermore, the record in the Florida case supports the plaintiff's claim of fraud in disclosing that in her husband's sworn statement in January 1937 he asserted he had been a resident of that state for more than ninety days. There is testimony in the instant record tending to show that this was false.
The foregoing recital is sufficient to indicate that the plaintiff has met the requirement of the statute by introducing other evidence to support her testimony. It is therefore necessary for this court to reverse the judgment of the Court of Appeals and affirm that of the Court of Common Pleas.
Judgment reversed.
TURNER, WILLIAMS, MATTHIAS, HART and BETTMAN, JJ., concur.
ZIMMERMAN, J., concurs in the syllabus but dissents from the judgment.