Decided April 19, 1950.
Appeal — Notice of appeal may be amended by changing judgment date — Husband and wife may enter into separation agreement — Party electing to avoid agreement, seeks equitable relief, when — Equitable relief must be granted before law relief allowed, when — Action chancery case, when.
1. Where a notice of appeal from the Court of Appeals to the Supreme Court designates the judgment appealed from as one rendered on April 2, 1949, and the only judgment rendered by the Court of Appeals in April 1949 was rendered on the fifth day, the Supreme Court must allow an amendment of the notice changing April 2 to April 5. ( Couk v. Ocean Accident Guarantee Corp., Ltd., 138 Ohio St. 110, and Mosey v. Hiestand, Trustee, 138 Ohio St. 249, approved and followed.)
2. On separation, a husband and wife may enter into an agreement mutually releasing their respective rights to dower and distributive shares and releasing each other from claims for care, support or maintenance. ( Hoagland v. Hoagland, 113 Ohio St. 228, approved and followed.)
3. Where a party to such an agreement elects to avoid it, on the ground of fraud (other than "fraud in the factum") or for a violation of "the general rules which control the actions of persons occupying confidential relations with each other," such party necessarily asks for and seeks equitable relief from the provisions of the agreement.
4. Unless such agreement is void for "fraud in the factum," such equitable relief must be granted before the allowance of alimony.
5. An action is a chancery case if it is necessary to determine whether plaintiff is entitled to equitable relief before other relief can be allowed.
APPEAL from the Court of Appeals for Ottawa county.
On May 15, 1946, the guardian of Mary V. Meyer brought an action against Leonard F. Meyer for alimony only. The action was brought in the Common Pleas Court of Erie County but was transferred to the Common Pleas Court of Ottawa County, pursuant to Section 12000, General Code.
The answer of Mr. Meyer, among other things, alleged that on August 11, 1941, Mr. and Mrs. Meyer "entered into a separation agreement, the terms of which were fair reasonable and just to both parties at the time said agreement was made by the provisions of which, the plaintiff and defendant mutually agreed and promised to release each other from all obligations of future support for themselves and further release each other from all rights or claims by way of dower, inheritance, descent and distributive share in and to any property then or hereafter acquired by said plaintiff and defendant. Further as a part of said separation agreement both plaintiff and the defendant mutually agreed that in case an action for divorce should hereafter be instituted by either party, neither party should ask or apply for any allowance for counsel fees or any alimony either temporary or permanent, and that said separation agreement was made in full satisfaction of all such claims and demands as well as of separate rights of dower, inheritance and distribution resting in either party thereto by reason of such marriage relation."
To this portion of Mr. Meyer's answer, Mrs. Meyer's guardian filed a reply reading in part:
"Plaintiff says that if the contract set forth in defendant's answer is a contract signed by Mary V. Meyer, then said contract, or any contract signed by Mary V. Meyer covering her domestic situation with the defendant, is not binding upon the said Mary V. Meyer for said contract, or contracts, are not fair, nor just, nor reasonable and were not fairly entered into nor clearly understood by the said Mary V. Meyer; that no contract entered into between the parties was ever presented to or passed upon by a court of competent jurisdiction; that no contract entered into between the parties provided for the support of Mary V. Meyer, and that no provision was ever made to reimburse Mary V. Meyer for the sums which she advanced to the defendant for his personal ventures, including stock market speculations, nor for funds which she advanced to maintain the family.
"Plaintiff says that if a contract of attempted settlement was signed by the parties, it was part of a general plan for the separation of the parties instigated by the defendant and desired by the defendant; that the defendant desired to withdraw from the family and to avoid his family responsibilities; that the defendant had a peculiar attitude towards money and that he failed to disclose his true income and earning power so as to avoid any payment of support to Mary V. Meyer or any reimbursement for the funds she had advanced to him, and that he did so wilfully and fraudulently.
"Plaintiff says that at the time of the signing of the alleged contract, Mary V. Meyer was greatly upset physically and mentally due to the family difficulties created by the defendant; that she was in no condition to enter into a contract of settlement, a fact well known to the defendant, and that if a contract was signed as alleged, it was signed under an unfair advantage as alleged.
"Plaintiff says that the chattel assets mentioned in said alleged contract to be given to Mary V. Meyer were owned or jointly owned property and were of no value to the defendant and of little value to Mary V. Meyer.
"Plaintiff says that at the time of the alleged contract, the homestead referred to therein was in danger of foreclosure, a fact well known to the defendant, and that it was actually foreclosed within a very short time of the date alleged in the contract, with the result that a deficiency judgment was taken against the parties; and that Mary V. Meyer got no benefit from the alleged provision regarding the homestead.
"Wherefore, plaintiff prays that any contracts of settlement found to have been made between the parties be voided and that alimony be allowed for the support of Mary V. Meyer as in the petition alleged."
At the time of filing his answer, Mr. Meyer also filed a cross-petition asking a divorce. He subsequently filed an amended cross-petition and the guardian of Mrs. Meyer filed a reply to the amended cross-petition. However, none of these other pleadings is material to a consideration of the questions raised on this appeal.
Subsequently, on June 20, 1947, it appearing that Mrs. Meyer had been restored to competency, the court substituted her for her guardian as party plaintiff.
On June 27, 1947, after trial by the Common Pleas Court, it made an order dismissing Mr. Meyer's cross-petition and amended cross-petition and granting the prayer of Mrs. Meyer's petition for alimony.
The journal entry of the court, so far as it dealt with the separation agreement referred to in Mr. Meyer's answer, read:
"The court finds that the defendant left the home of the defendant and his wife without providing sufficiently or adequately for her support and maintenance; that the contract entered into between the defendant and Mary V. Meyer was and is wholly inadequate for the purpose of providing for the support and maintenance of Mary V. Meyer; that said contract is not binding upon the court; that Mary V. Meyer being the wife of the defendant is entitled to support from the defendant; that the defendant is a prosperous dentist with a profitable dental practice and capable of supporting his wife; that the defendant has been guilty of gross neglect of duty in violation of General Code 11997; of abandonment of his wife without good cause in violation of General Code 11997 and that there has been a separation in consequence of ill treatment on the part of the defendant in that the defendant has failed to maintain the wife in violation of General Code 11997 and accordingly the prayer of the plaintiff's petition is granted."
On the same day, Mr. Meyer filed a motion for a new trial which was overruled on December 4, 1947. On that day, Mr. Meyer filed a "notice of appeal on questions of law and fact to the Court of Appeals for Ottawa county * * * from the final order and judgment made and entered * * * on the 27 day of June, 1947, * * * and also from the order entered the 4 day of December, 1947 * * * overruling motion for new trial."
On April 5, 1949, the Court of Appeals made the following order:
"This cause came on to be heard as an appeal on questions of law and fact and thereupon the plaintiff, in open court, moved that the appeal be dismissed as an appeal on questions of law and fact and the court, being duly advised in the premises, finds the said motion well taken and grants same.
"It is therefore ordered, adjudged and decreed that the appeal of the defendant on questions of law and fact be and the same is hereby dismissed.
"It is further ordered that this cause shall stand for hearing on appeal on questions of law and a bill of exceptions having been filed and approved in this cause, no further time is fixed for the preparation and settlement of the bill of exceptions."
On April 15, 1949, attorneys for Mr. Meyer filed the following notice of appeal:
"The above named defendant and appellant hereby gives notice of appeal to the Supreme Court of Ohio from a judgment rendered by the Court of Appeals in the above entitled cause on the second day of April 1949.
"Said appeal is on questions of law and is taken to the Supreme Court:
"(a) In a case involving a debatable constitutional question;
"(b) As an appeal of right under Rule XXIV of the Supreme Court of Ohio."
This appeal has been entertained pursuant to rule XXIV of this court.
Messrs. Clarke Costello, for appellee.
Mr. John F. McCrystal and Mr. James L. McCrystal, for appellant.
From the foregoing statement of facts, it appears that the notice of appeal designates the judgment appealed from as rendered on April 2, 1949. The record discloses that only one judgment was rendered by the Court of Appeals in the instant case during April 1949. That judgment was rendered on April 5. Under such circumstances, this court may and is required to permit amendment of the notice of appeal so that it will designate the judgment of April 5 as the one appealed from. Mosey v. Hiestand, Trustee, 138 Ohio St. 249, 34 N.E.2d 210; Couk v. Ocean Accident Guarantee Corp., Ltd., 138 Ohio St. 110, 33 N.E.2d 9. See Capital Loan Savings Co. v. Biery, 134 Ohio St. 333, 16 N.E.2d 450; In re Guardianship of Wisner, 148 Ohio St. 31, 37, 38, 72 N.E.2d 374. But, compare Zier v. Bureau of Unemployment Compensation, 151 Ohio St. 123, 84 N.E.2d 746.
Appellant argues that, in dismissing his appeal as one on questions of law and fact, the Court of Appeals erred because either (1) it was a chancery case, or (2) such an appeal is authorized by Section 12002, General Code.
In Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St. 221, 70 N.E.2d 649, the syllabus reads:
"1. Section 6 of Article IV of the Constitution of Ohio, as amended November 7, 1944, empowers but does not require the General Assembly to change the appellate jurisdiction of the Courts of Appeals.
"2. Unless and until there is such legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted."
Although the writer of this opinion does not agree with the conclusion stated in the second paragraph of that syllabus, a majority of the members of this court adhere thereto.
It is necessary, therefore, to consider whether the instant case is a chancery case. Mr. Meyer's claim, that the instant case is a chancery case, is based upon the contentions that the separation agreement between Mr. and Mrs. Meyer would bar any claim by Mrs. Meyer for alimony until that agreement was set aside, and that it was necessary, therefore, for Mrs. Meyer to call upon the equity powers of the court before she could assert her cause of action for alimony.
Here, if the terms of the separation agreement are enforced, they would bar Mrs. Meyer's action for alimony. Unless that agreement is void, Mrs. Meyer could not assert her claim for alimony until that separation agreement was set aside or otherwise avoided. Perry v. M. O'Neill Co., 78 Ohio St. 200, 84 N.E. 41. Therefore, if the agreement is not void and if it is necessary for Mrs. Meyer to seek equitable relief to avoid it or set it aside, then the instant case is a chancery case. See Nordin v. Coulton, 142 Ohio St. 277, 51 N.E.2d 717. On the other hand, if the agreement is void or if it is necessary for Mr. Meyer to seek court approval of it before enforcing it, then the instant case is not a chancery case. On the record in the instant case, there is no basis for considering the separation agreement void on what has sometimes been referred to as "fraud in the factum." See Picklesimer v. Baltimore O. Rd. Co., 151 Ohio St. 1, 3, 84 N.E.2d 214.
Mrs. Meyer argues that, by reason of Sections 7999 and 8000, General Code, the separation agreement either is void or is unenforcible until a court has determined that it is fair as between the parties.
Those sections of the Code read:
Section 7999. "A husband or wife may enter into any agreement or transaction with the other, or with any other person, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other."
Section 8000. "A husband and wife cannot by any contract with each other alter their legal relations, except that they may agree to an immediate separation, and make provisions for the support of either of them and their children during the separation."
Section 8000 limits the power of husband and wife to make a contract altering their legal relations. Du Bois v. Coen, Exr., 100 Ohio St. 17, 125 N.E. 121. However, it recognizes their power to make a contract in certain instances. Thus, on separation, they may enter into an agreement mutually releasing their respective rights to dower and distributive shares and releasing each other from claims of care, support or maintenance. Hoagland v. Hoagland, 113 Ohio St. 228, 148 N.E. 585. See, also, Mendelson v. Mendelson, 123 Ohio St. 11, 173 N.E. 615. It follows that a separation agreement, such as involved in the instant case, is not void by reason of the foregoing statutory provisions.
Where a party to such an agreement elects to avoid it, on the ground of fraud or what may have the same effect (a violation of "the general rules which control the actions of persons occupying confidential relations with each other" referred to in Section 7999, General Code), such party necessarily asks for and seeks equitable relief from the provisions of the agreement. See Hoagland v. Hoagland, supra, 240. Thus, it cannot be said that the separation agreement is unenforcible until a court has determined that it is fair as between the parties. Rather, it must be said that the agreement is enforcible until a court has determined that it is not fair as between the parties. While a party will be aided in securing such a determination by the words at the end of Section 7999, General Code, such party must ask for and seek equitable relief in order to secure such a determination.
It has been suggested that, since Mrs. Meyer attacked the separation agreement in her reply instead of in her petition, she could prevail only if the separation agreement is void. Where a party seeks to avoid and set aside an agreement which would bar his cause of action, and which is not void, the allegations, entitling him to set aside such agreement, should ordinarily be in his petition. Perry v. M. O'Neill Co., supra. While Mrs. Meyer here sought such relief in her reply, the allegations of the reply merely set forth at most equitable grounds for such relief. She is in no position, having sought and obtained equitable relief on the allegations of her reply in the Common Pleas Court, to claim that the court erred in giving her the relief which she sought. As to Mr. Meyer, he is in no position to contend that Mrs. Meyer is not entitled to that relief because she sought it in her reply instead of in her petition. He has waived any such right by his inconsistent position in this court, which is that plaintiff's reply sought equitable relief and thereby made the instant case a chancery one.
Our conclusion is that the instant case is a chancery case. It follows that, under Youngstown Municipal Ry. Co. v. City of Youngstown, supra, Mr. Meyer is entitled to a trial de novo in the Court of Appeals.
Therefore, it is unnecessary for this court to consider either (a) whether Section 12002, General Code, provides for a right to a trial de novo on an appeal from a final order or judgment granting alimony or (b), if it does, whether that statute was "in force" when the 1944 amendment of Section 6 of Article IV became effective.
Mr. Meyer further assigns as error that the Common Pleas Court erred in overruling his motion for judgment on the pleadings. Since the case must be remanded to the Court of Appeals for a trial de novo, that question is not before this court for decision at this time.
The judgment of the Court of Appeals is reversed and the cause is remanded to that court for a trial de novo.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART and TURNER, JJ., concur.