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Reed v. Reed

Supreme Court of Ohio
Jun 19, 1929
167 N.E. 684 (Ohio 1929)


No. 21571

Decided June 19, 1929.

Divorce, alimony and equitable relief — Service by publication — Sections 11292 and 11984, General Code — Husband's real property subject to alimony decree, when — Proceeding an action in rem, when — Decree a lien on defendant's realty in another county, when — Section 11990, General Code.

1. Service by publication is authorized by Sections 11292 and 11984, General Code, in an action for divorce, alimony and equitable relief, and the trial court has power to make an alimony decree where the only relief sought is the appropriation of real property of the husband, "situated within the county, to the payment of the amount that should be allowed for such alimony and support.

2. Such an action is substantially one in rem, and when the petition specifically describes the real property in question, the court has jurisdiction, upon completion of service by publication and hearing upon the merits, to decree the relief sought.

3. Under Section 11990, General Code, the decree entered in one county may be made a lien upon real property of the defendant lying within another county in the state.

ERROR to the Court of Appeals of Cuyahoga county.

This case arose in the court of common pleas of Cuyahoga county as an action by Helen M. Reed against John M. Reed for divorce, alimony, and equitable relief. The parties below stood in the same relation to each other as in this court. The petition alleged various grounds of extreme cruelty exhibited by the defendant towards the plaintiff, and set up the necessary jurisdictional facts. That part of the petition material to this controversy is as follows:

"The defendant is seized in fee of an undivided half interest in the following described pieces of real estate, the other half of which belongs to this plaintiff:

"First Parcel.

"Situated in the Township of Mentor, County of Lake, and State of Ohio, and being known as Lot No. 1007, having a frontage of 45 feet on the westerly side of Orchard Road, and being 144 feet in depth according to Plat recorded in Volume D, Pages 53 to 65, Lake County Records of Plats.

"Second Parcel.

Situated in the City of Cleveland, County of Cuyahoga, and State of Ohio, and known as being part of Tract No. 14, Euclid Township; beginning at a point in the center line of Nottingham Road at its intersection with the southeasterly line of Mary A. Jefferies Subdivision as shown by plat recorded in Volume 26 of Maps, Page 22 of Cuyahoga County Records, said point being also south 34° 42' 15" West 0.75 feet from a stone monument; thence from said beginning point south 52° 24' 30" East along the center line of Nottingham Road 247.0 feet to a point; thence North 37° 25' 30" East 172 76/100 feet to the principal point of beginning, which is also the northeasterly line of a proposed street; thence deflecting to the right along the are of a circle, forming a part of the Northeasterly line of said proposed street 7.51 feet. Said are having a radius of 107.5 feet and chord which bears North 54° 24' 31" West 7.50 feet; thence North 37° 35' 30" East 107.5 feet; thence South 52° 24' 30" East 40 feet, said course being parallel with and distant Northeasterly at right angles 280 feet from the center line of Nottingham Road; thence South 37° 35' 30" West, 99 78/100 feet to the Northeasterly line of said proposed street; thence deflecting to the right along the arc of a circle forming a part of the Northeasterly line of said proposed street, 33.48 feet, said arc having a radius of 107.5 feet and a chord which bears North 65° 19' 52" West 33.35 feet to the principal place of beginning, being further known as Sublot No. 25 in the Elworthy-Helwich Company's Bungalow Park Allotment No. 2.

"Upon the second described real estate there is a first mortgage of Forty-Five Hundred Dollars ($4,500.00) payable Forty-Five Dollars ($45.00) per month.

"Plaintiff claims that by reason of the above mentioned facts that she is entitled to divorce and alimony for her maintenance and her support out of the property of the defendant.

"Wherefore this plaintiff prays that upon hearing of this case she may be granted a divorce from the defendant; that she may be granted reasonable alimony out of the property of the defendant; that the undivided one-half interest of the defendant in the above described parcels of real estate now standing in the joint names of the plaintiff and defendant may be decreed by this honorable court to her as part of her said alimony; that the plaintiff may be given the furniture now at the former home of the plaintiff and defendant, 19515 Tiverton Road, free of any rights of the defendant therein; that the defendant may be barred from any and all rights, either of dower or otherwise, which he might have in the property, both real and personal of the plaintiff by reason of the former marriage relation existing between them; and for such other and further relief as is just and equitable in the premises."

Proof of publication was filed in accordance with the statute, and the court upon final hearing found the defendant in default of answer or demurrer, although duly served with process by publication, according to law. The court found the allegations of the petition to be true, and found the defendant guilty of extreme cruelty toward the plaintiff, and awarded the divorce as prayed for. The court further ordered and adjudged that the plaintiff have and possess all of her wearing apparel and all of the household and kitchen furniture then in her possession and situated in the house where plaintiff and defendant formerly resided, granted plaintiff a divorce from defendant, dissolved the marriage contract, and ordered that plaintiff be restored to her maiden name. The court refused to grant plaintiff any alimony or to make any order for the disposition of the real estate of the defendant, described in plaintiff's petition, upon the ground that the defendant had been served by publication only. The judgment of the court of common pleas was affirmed by the Court of Appeals of Cuyahoga county.

The case comes into this court upon allowance of motion to certify the record.

Mr. A.W. Bell, for plaintiff in error.

The trial court held that jurisdiction to render a decree of divorce against a party who has been served by publication according to law does not confer jurisdiction to adjudicate property rights between the parties in the case where real property, belonging to the defendant served by publication, is situated within this state. This judgment was affirmed by the Court of Appeals. We therefore have squarely presented the question of the power of a court of general jurisdiction within this state, upon process being duly served by publication according to law, to grant to a plaintiff in a divorce case alimony out of real property of the defendant situated within the state, and thus physically within the jurisdiction.

Section 11984, General Code, which is in the chapter entitled "Divorce and Alimony," provides:

"If the defendant is not a resident of this state or his residence is unknown, notice of the pendency of the action must be given by publication as in other cases."

While Section 11292, General Code, which provides in what cases service shall be given by publication, does not specifically mention divorce and alimony cases, this enactment in Section 11984 places divorce and alimony actions among the list of those in which service by publication is expressly provided for.

Section 11292 also provides that service by publication may be made in any of the following cases:

"7. In an action in which it is sought by a provisional remedy to take or to appropriate in any way property of the defendant, when the defendant is not a resident of this state or is a foreign corporation or his place of residence cannot be ascertained. * * *

"9. In an action which relates to or the subject of which is real or personal property in this state, when the defendant has or claims a lien thereon, or an actual or contingent interest therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is not a resident of this state, or is a foreign corporation, or his place of residence can not be ascertained."

The refusal of the trial court to make the order prayed for herein was evidently predicated upon the theory that a judgment for alimony necessarily is a judgment in personam, and that a judgment in personam cannot be granted upon service by publication. Conceding that the relief prayed for does require a judgment in personam, the trial court was correct in its holding. However, the question as to whether this action stated a prayer for relief in personam or in rem is the very gist of the controversy, for it has been previously held by this court in the case of Benner v. Benner, 63 Ohio St. 220, 58 N.E. 569, that an action for alimony and support of children, where the only relief sought is the appropriation of real property of the husband, situated in the county where the action is brought, to the payment of the amount that should be allowed for such alimony and support, is substantially one in rem.

It is difficult to see any essential difference between the facts in the case of Benner v. Benner and those of the instant action, so far as the question that the action is substantially one in rem is concerned, except for the distinction that in the Benner case the plaintiff had applied for a preliminary injunction restraining the disposition of his property by the defendant. In that case the husband had deserted the family, left the state, and later upon the death of his father had become the owner of certain real property situated in Columbiana county. The wife commenced an action for alimony in Columbiana county, specifically describing the real property, and prayed for the allowance out of the property of a reasonable amount as alimony and a sufficient sum for the support of the child. The defendant nonresident was served by publication, and the trial court held that after service by publication was completed the court was empowered to enter a decree allowing the plaintiff a certain lump sum and a certain specified monthly payment, to be made a charge upon the real property described in the petition. This court affirmed that judgment. The Benner case has been followed by this court in memoranda opinions, namely, St. Clair Street Realty Co. v. Beeman, 81 Ohio St. 509, 91 N.E. 1126, and Pennington v. Fourth National Bank of Cincinnati, 92 Ohio St. 517, 112 N.E. 1085. In the Beeman case, Mrs. Beeman filed an action in Cuyahoga county for divorce and alimony, making various trust companies and other corporations, including the St. Clair Realty Company, parties defendant, and secured an order restraining them from paying or delivering to the husband any money or property. Service was completed by publication. Upon trial on the merits, the plaintiff was awarded all of the stocks belonging to the husband in the defendant corporations, the dividends thereon, and the money due Lester A. Beeman on a deposit account with the Citizens' Savings Trust Company. The principal issue in the case was whether the court of common pleas had jurisdiction to render the decree in question upon service by publication. This court affirmed the judgment of the courts below.

In the Pennington case, the record showed that the wife had applied in the court of common pleas of Hamilton county for divorce, alimony, and custody of children, making the Fourth National Bank a party defendant. Service was secured by publication in accordance with the statute. Upon final decree, the plaintiff in error, Charles Pennington, was divested of all of his interest in a sum of money held by the defendant bank for Charles Pennington, and the bank was ordered to pay such sum to the wife or to her attorney. This was done, and the former husband sued the bank to recover the amount of money deposited by him with the bank, judgment was rendered against him, and that judgment was affirmed by this court.

We think that the Benner decision and the Beeman and Pennington cases, supra, are conclusive of this question. While the Benner and Pennington cases allowed alimony out of personal property, the jurisdiction of the court to grant alimony upon service by publication was upheld. Moreover, an examination of the authorities shows that the weight of decisions of courts of last resort is to the effect that the court which renders a divorce or alimony decree has the power upon service by publication to apply toward payment of an alimony decree real property situated within such state and belonging to a nonresident defendant. Rhoades v. Rhoades, 78 Neb. 495, 111 N.W. 122, 126 Am. St. Rep., 611; Murray v. Murray, 115 Cal. 266, 47 P. 37; Wilder v. Wilder, 93 Vt. 105, 106 A. 562; Holmes v. Holmes (D.C.), 283 F., 453; Forrester v. Forrester, 155 Ga. 722, 118 S.E. 373, 29 A. L. R., 1363; Blackinton v. Blackinton, 141 Mass. 432, 5 N.E. 830, 55 Am. Rep., 484; Hamil v. Hamil, 106 Okla. 14, 232 P. 823; Harshberger v. Harshberger, 26 Iowa 503; Closson v. Closson, 30 Wyo. 1, 215 P. 485, 29 A. L. R., 1371; Allen v. Allen, 126 Ark. 164, 189 S.W. 841; Hanscom v. Hanscom, 6 Colo. App., 97, 39 P. 885; Bailey v. Bailey, 127 N.C. 474, 37 S.E. 502.

Many of the statutory provisions considered in the cases cited as to service by publication are strikingly similar to those in the state of Ohio. The courts generally comment in the above decisions upon the fact that service by publication is specifically provided for in divorce cases (as is the case also in Ohio), and hold that, as the power to adjust the property rights of the parties is an incident to the power to grant the divorce, the court necessarily has the jurisdiction to dispose of real property within the state.

In the case of Hamil v. Hamil, supra, the statute provided for service by publication both in divorce and alimony actions, where the defendant was nonresident, and also in an action brought against a nonresident having in that state property sought to be taken by any of the provisional remedies or "to be appropriated in any way." This court, in deciding the case of Benner v. Benner, relied upon the phrase "to appropriate in any way," included in the similar provision of the Ohio Code, and held that under paragraph 3 of Section 5048, Revised Statutes of 1880 (now paragraph 7 of Section 11292, General Code, quoted above), the alimony action plead in that particular case constituted a proceeding in rem.

The case of Wesner v. O'Brien, 56 Kan. 724, 44 P. 1090, 32 L.R.A., 289, 54 Am. St. Rep., 604, cites a statutory provision similar to the one in our own state, with regard to service by publication when property is sought to be taken by any of the provisional remedies or to be appropriated in any way. In that state, also, service by publication was authorized where the action relates to real or personal property in the state in which a nonresident defendant has or claims an interest or where the relief demanded consists wholly or partly in excluding him from any interest therein. This provision strongly resembles our statute, paragraph 9 of Section 11292, supra.

In the case of Harshberger v. Harshberger, supra, the statute provided that when a divorce is decreed the court may make such order in relation to the children and property of the parties and the maintenance of the wife as shall be right and proper.

In the case of Closson v. Closson, supra, the statutes cited authorize the court to make such disposition of the property of the parties as shall appear just and equitable, and also to decree to the wife reasonable alimony out of the estate of the husband, and to effectuate the purposes aforesaid it may order so much of his real estate as is necessary to be assigned and set out to the wife for life.

There is no essential difference in the relevant statutory provisions of the above cases and the statutes of Ohio, and hence the cases are not distinguishable, either upon the facts or upon the statutes which they construe.

These decisions, if correct, must necessarily be grounded upon the proposition that an application for alimony which prays for the appropriation of specific real property lying within the state in which the action is brought exhibits the main features of an action in rem.

Among the many decisions which make this holding is Blackinton v. Blackinton, supra. In that case a man and woman who were citizens of Massachusetts were married and resided in that state. Later the husband abandoned his wife without cause, and went to New York state, where he continued to reside. The wife continued to reside in Massachusetts. A petition was filed in the probate court of Massachusetts praying for an order for support and maintenance under the statute then in force, which authorized such suit for separate maintenance and for service of notice on nonresidents. Notice of the proceeding was served upon defendant in New York, but no attachment of property was made as a basis for the suit. The defendant moved to dismiss for want of jurisdiction, but the court held in favor of the plaintiff. In the opinion the court, speaking through Justice Holmes, said:

"The whole proceeding is for the regulation of a status. The incidents of that status are various — some concerning the person, some concerning the support, of the petitioner or her child. The order to pay money is not founded on an isolated obligation, as in a case of contract or tort, but upon a duty which is one of those incidents. The status, considered as a whole, is subject to regulation here, although it involves relations with another not here, because such regulation is necessary rightly to order the daily life, and to secure the comfort and support, of the party rightfully living within the jurisdiction. It is quite true that these considerations may not suffice to give the decree extra-territorial force, and that, in general, courts do not willingly pass decrees, unless they think that other courts at least ought to respect them. But that is not the final test. We think that the statute was intended to authorize such decrees as that appealed from, and tacitly to adopt the rules as to service expressly laid down for divorce. * * * We are therefore of opinion that the decree was within the power of the court, and can be carried out against the defendant's property within the jurisdiction, and against his person if he be found here."

The majority of the court regards this action, with its specific description of particular parcels of real estate lying within the state of Ohio, and with its prayer for appropriation of these parcels of real property to the alimony claim of the plaintiff, as being a proceeding for the regulation of the marriage status, and hence as constituting essentially an action in rem.

The inconsistency of the holding of the trial court in this case is shown by the fact that, while in her petition the plaintiff made no claim that the furniture and household goods in her former home were her own personal property, and even conceded that the defendant might have some property rights therein, these chattels were decreed by the court to be the property of the plaintiff, although the only service secured with reference thereto was service by publication. The court, however, refused to make an order for alimony which should constitute a charge upon the real estate of defendant lying within the jurisdiction.

We think that the Code contemplates that the alimony obligation may be an obligation in rem, and that, when a plaintiff prays for alimony to be decreed out of or made a charge upon specific real property within the jurisdiction, the case cannot be looked upon as calling for a mere money judgment.

Two other questions arise: First, whether the plaintiff herein brought the property within the jurisdiction of the court in her action, so that it can be said to have been sequestrated and held within the control of the court for whatever disposition should be made upon final decree; and, second, whether the Lake county property can be subjected to the payment of alimony awarded in Cuyahoga county. We think the first proposition is decided in favor of the plaintiff by the case of Wesner v. O'Brien, supra, cited and relied upon by this court in the Benner case. In that controversy, the contention was squarely made that the property in question had not been brought within the control of the court by attachment or any similar proceeding. The court held that, where a petition asks to have specific land appropriated as alimony and the publication notice contains a particular description of land sought to be appropriated and the nature of the relief demanded, this constitutes a sequestration of the property and gives the court jurisdiction to dispose thereof upon final decree. The court points out that it is not necessary, in order to bring the property under control of the court, that it should actually be taken in attachment or by other writ, and states that any authorized act by which the court takes charge of property or asserts its control there-over is sufficient for purposes of jurisdiction.

From the standpoint of practical remedy it would be futile to require the seizure of land which necessarily cannot be removed from the jurisdiction. This land was precisely described in the petition. Under Section 11984, General Code, unless it be made to appear to the court by affidavits or otherwise that his residence is unknown to the plaintiff and could not with reasonable diligence be ascertained, a summons and copy of the petition forthwith on the filing of it shall be deposited in the post office, directed to the defendant at his place of residence. The affidavit for service by publication herein did not state that the residence was unknown to the plaintiff and could not with reasonable diligence be ascertained, and in fact gave a full and present address for the defendant. Since the court found in its final decree that the defendant had been duly served with process by publication according to law, we must assume that a copy of the petition was mailed to the defendant at the address given. That petition showed that the action in question dealt with this particular property, and prayed for its appropriation under the alimony feature of the case, and hence the defendant had notice that the realty was being held by the court pending final adjudication.

In the Wesner case, supra, the only steps taken to bring the property within the court's control were the commencement of the suit, with specific description of the property and publication of the notice. The court held that formal seizure was not necessary and that the judgment hence was valid.

Holdings upon the same point are to be found in Closson v. Closson, supra, in Hamil v. Hamil, supra, in Allen v. Allen, supra, and in others of the cases cited, and hence we conclude that the specific description of the property in the instant case brought such property within the jurisdiction of the court.

We proceed, then, finally to consider whether, granting that the court can decree alimony out of the land situated in Cuyahoga county, such decree can also be made a charge upon the land situated in Lake county. This real property is also specifically described in the petition.

We answer this question also in the affirmative. Section 11990 provides that, when a divorce is granted because of the husband's aggression, the husband shall be barred of all right of dower in the wife's property. Since the real property in question was owned jointly by the husband and wife, the trial court erred in holding that he did not have jurisdiction to bar the defendant of any and all rights of dower in the wife's interest in the lands described. Section 11990 then provides that "the court shall * * * allow such alimony out of her husband's property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce."

Section 11991 continues: "Such alimony may be allowed in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments, as the court deems equitable."

These provisions are broad, and so far as they relate to the property of the husband, out of which alimony shall be allowed, they are not limited with respect to situs. The statute does not limit allowance of alimony to be made out of property situated within the county where the wife brings her action. As a matter of fact the plaintiff here was compelled to bring her action in Cuyahoga county. As stated in Wesner v. O'Brien, supra:

"The jurisdiction depends upon the domicile of the plaintiff, and not upon the location of the land sought to be appropriated as alimony. It must be brought in the county of which the plaintiff is a resident, and cannot be maintained, unless the plaintiff has been an actual resident of the state in good faith for one year before the filing of the petition. * * * Alimony is an incident of the divorce proceeding, and, when the action is rightfully brought, any land within the operation of the laws of the state, and which has been brought within the control of the court, may be appropriated as alimony."

Applying this sound reasoning to the instant case, the divorce action herein under the statutes was required to be brought in Cuyahoga county. The wife could not bring her action in Lake county. The application for alimony was incidental to and a part of the divorce proceeding. If the plaintiff had brought her action in Lake county, obviously she would have lost her case, owing to the mere fact that she was not a resident of that county. Since the action was properly brought, and since there is within the county and state land of the defendant sought to be appropriated as an incident of the divorce, of which the court rightly has jurisdiction, the court, under the broad provisions of Sections 11990 and 11991, has power to adjudicate the plaintiff's property rights in the land, wherever it is situated within the state. As the Code authorizes only a single divorce action, whether personal or constructive service be secured, if the service is valid any land within the state brought under the control and jurisdiction of the court is subject to its decree.

Holdings to the same effect are Hamil v. Hamil, supra, and Harshberger v. Harshberger, supra. In the Harshberger case, the contest was between an attaching creditor of the husband, who had obtained a writ of attachment levied upon lands of the husband situated in Keokuk county, Iowa, and the divorced wife, who had secured a divorce from her husband on service by publication in Mahaska county, Iowa. The Keokuk county land was particularly described in the petition for divorce, and the judgment for alimony was made a lien upon such land. Subsequent to the writ of attachment being levied upon the Keokuk county land, the wife caused a transcript of the judgment rendered in Mahaska county to be filed in the office of the clerk of the district court of Keokuk county. The trial court ordered that the judgment for alimony be first satisfied from the proceeds of the land in Keokuk county, prior to the claim of the attachment, and this judgment was affirmed. The reviewing court held that, since alimony is an incident to divorce, and the land was specifically described in the petition, the judgment of the court in Mahaska county rendered prior to the issuance of the writ of attachment levied in Keokuk county made the lien of the attaching creditor subject to the lien of the judgment for alimony.

When a valid decree in rem has been entered in Cuyahoga county, it may be made a charge upon real property of the defendant situated within Lake county.

For these reasons, the judgments of the lower courts will be reversed, and the case will be remanded to the court of common pleas for hearing and decision as to the application for alimony made in the petition with reference to the real property of the defendant lying within the state of Ohio.

Judgment reversed and cause remanded.


MATTHIAS, J., concurs in propositions 1 and 2 of the syllabus and in the judgment.

Summaries of

Reed v. Reed

Supreme Court of Ohio
Jun 19, 1929
167 N.E. 684 (Ohio 1929)
Case details for

Reed v. Reed

Case Details

Full title:REED v. REED

Court:Supreme Court of Ohio

Date published: Jun 19, 1929


167 N.E. 684 (Ohio 1929)
167 N.E. 684

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