Opinion
No. 28615
Decided November 26, 1941.
Divorce and alimony — Divorce petition withdrawn and cause heard upon alimony cross-petition — Section 11998, General Code — Division of property not authorized, when.
APPEAL from the Court of Appeals of Cuyahoga county.
This action originated in the Court of Common Pleas of Cuyahoga county upon the filing of a petition by Marco Materazzo for a divorce from Jenney Materazzo. The defendant filed a cross-petition for alimony only. Plaintiff thereupon withdrew his petition for divorce and the cause proceeded to a hearing upon the cross-petition.
In the consideration of the single question of law presented by the record, it is unnecessary to refer to the evidence adduced upon the hearing except to state that, though it was alleged in the cross-petition that plaintiff "has an interest in" certain property therein described, no evidence was offered on the hearing on behalf of either party as to the ownership or possession of any property real or personal. The court found the plaintiff "guilty of gross neglect of duty" and, "upon coming to consider the question of alimony, that the defendant and cross-petitioner is entitled to an award of permanent alimony." The court then "ordered, adjudged and decreed that the defendant be awarded the sum of $360 as and for and in full of all alimony, both temporary and permanent, and in full satisfaction of all property rights that the defendant has in the property of the plaintiff, which arose or grew out of said marital relationship. Said sum of $360 shall be payable * * * in twelve equal monthly payments * * *."
Upon appeal of the defendant to the Court of Appeals, that court affirmed the judgment. The case is in this court pursuant to the allowance of a motion for certification.
Mr. Milton Alfred Roemisch, for appellee.
Mr. Clarence H. Royon, for appellant.
The record in this case presents a single question for determination: May a trial court, in a proceeding involving a claim for alimony only, make an award to the wife which is to be determinative of all her rights to her husband's property?
The parties are still married, and while that status continues there is always the possibility of a termination of the separation. The court is therefore without power to finally determine the property rights of the parties. This rule is established in Ohio by the decision of this court in the case of Durham v. Durham, 104 Ohio St. 7, 135 N.E. 280. The syllabus reads as follows:
"Upon petition of the wife for alimony alone, the trial court is not authorized to make an equitable division of the husband's property, but is confined by Section 11998, General Code, to making an award as alimony for her maintenance and support during separation."
The judgment of the Court of Appeals was therefore erroneous and is hereby reversed, and the cause is remanded to the Court of Common Pleas for further proceedings.
Judgment reversed and cause remanded.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART, ZIMMERMAN and BETTMAN, JJ., concur.