Shively v. Shively
| Decision Date | 25 May 1950 |
| Citation | 88 Ohio App. 7,95 N.E.2d 276 |
| Parties | , 58 Ohio Law Abs. 19, 43 O.O. 385 SHIVELY v. SHIVELY et al. |
| Court | Ohio Court of Appeals |
E. H. & W. B. Turner and Clinton S. Courson, all of Dayton, for plaintiff-appellant.
Irvin Carl Delscamp, Dayton, for Walter O. Shively, defendant-appellee.
Robert E. Cowden, Dayton, for John H. Shively, Sr., defendant-appellee.
This is an appeal on questions of law from the Common Pleas Court of Montgomery County, Ohio, Division of Domestic Relations, in which the court decreed a divorce and alimony to the plaintiff.
Plaintiff-appellant appeals from the judgment for the reason that the court denied the plaintiff the right to an award of alimony out of the defendant's assigned distributive share of the proceeds of the sale of the residence which was jointly owned by plaintiff and defendant and which was sold in a partition action in the Common Pleas Court of Montgomery County, Ohio.
The defendant, Walter O. Shively, filed a cross-appeal claiming that the alimony awarded the plaintiff is grossly excessive.
With respect to the factual matters both appeals are submitted to this Court on the separate findings of fact and conclusions of law rendered by the trial court. No bill of exceptions has been filed.
The trial court found that the husband and wife acquired and at the time of the filing of the divorce action each owned the undivided one-half interest in a piece of real estate used as their residence. The husband separated from the wife in 1946. The husband, on December 19, 1947, filed an action in partition in the Common Pleas Court in Montgomery County, Ohio, praying for an order requiring the wife to suffer the sale of her interest therein. That the husband was entitled to an order of partition against the wife was decided by this Court in Shively v. Shively, Ohio App., 88 N.E.2d 280. The opinion of this Court on this question was rendered November 23, 1948.
The findings of fact further show that the husband contracted debts and was hopelessly insolvent. The husband's brother, who was made a party defendant in this divorce action, loaned the husband ten thousand dollars and co-signed his note for an additional ten thousand dollars to pay such debts. As security therefor, in April, 1948, the husband assigned to his brother his distributive share of the partition sale proceeds. This assignment was recorded on January 10, 1949.
On January 17, 1949, the wife filed this action for divorce and alimony on the grounds of gross neglect of duty and extreme cruelty, and specifically described the residence property which was later sold on partition. The defendant filed a cross-petition for divorce on the grounds of gross neglect of duty and extreme cruelty. In this action the wife moved for a temporary injunction to prevent the husband and his assignee from selling the residence property in the partition action. The motion was Thereupon, the wife filed an action in mandamus in the Supreme Court to compel the respondent judge to allow a temporary restraining order in the divorce action restraining the parties in the partition action from proceeding with the sale of the property. This matter was presented to the Supreme Court on demurrer to the petition. The opinion of the Court in that case is reported under the title: State ex rel. Shively v. Nicholas, 151 Ohio St. 179, 84 N.E.2d 918. The court held that a writ of mandamus may be employed to require the exercise of judicial discretion but not to control it. On page 181 of 151 Ohio St., on page 920 of 84 N.E.2d in discussing the partition action and the effect of this Court's final order on appeal, the Court says:
After the decision of the Supreme Court was announced in the mandamus action, an order of sale was taken in the partition action. The property was sold in April, 1949. On April 30, 1949 the court in the divorce action issued a temporary restraining order against the Sheriff of Montgomery County, Ohio, restraining him from disbursing any of the proceeds of the sale, except for the payment of costs, until the final determination of this action.
The divorce and alimony action came on to be heard before Honorable Huber A. Beery, Judge of the Common Pleas Court of Shelby County, Ohio, who sat by assignment as a Judge of the Common Pleas Court of Montgomery County, Ohio. His opinion was announced on June 29, 1949. On request of the wife, plaintiff-appellant, the court rendered separate findings of fact and conclusions of law on August 8, 1949.
The trial court dismissed the defendant's cross petition and granted a divorce to the plaintiff on the ground of gross neglect of duty and extreme cruelty, and awarded her alimony. No question is raised with respect to granting the divorce to the wife. With respect to the husband's assigned distributive share in the proceeds of the sale of the residence property which was sold in the partition action the trial court rendered conclusions of law as follows:
'3. This Court has jurisdiction to award the wife alimony out of the husband's distributive share of the partition sale proceeds as against the husband had there been no valid assignment prior to the issuance of the temporary restraining order.
'4. The assignment by the husband to his brother of the husband's distributive share of the partition sale proceeds prior to the filing of this action creates intervening rights in the husband's brother and cuts off and is preferable to the wife's right to such an award as against the brother, no fraud having been shown in the trial of the cause by the wife.
'5. The Plaintiff, Adele Shively, has no right to alimony out of Walter O. Shively's distributive share of the proceeds of the sale of the real estate owned by said Walter O. Shively and said Adele Shively, and sold in said partition suit in the Common Pleas Court of Montgomery County, Ohio, as against the Defendant, John H. Shively, Sr.
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'7. The assignment by Walter O. Shively to John H. Shively of his distributive share of the proceeds of the sale in the partition suit filed by Walter O. Shively against Adele Shively, being Case No. 98502 in the Common Pleas Court of Montgomery County, Ohio, was made to secure the payment of a valid indebtedness in the amount of $20,000.00 owing by said Walter O. Shively to John H. Shively at the time such assignment was made, and such assignment was without intent, either by Walter O. Shively, the Assignor, or John H. Shively, the Assignees, to defraud the Plaintiff of her right to alimony in Defendant's property; and such assignment was made prior to the filing of the Plaintiff's petition in this action and the obtaining of a temporary restraining order against the Defendant from transferring his property.'
The plaintiff-appellant assigns as her first ground of error the refusal of the trial court to restrain the husband and his brother from selling the residence property and evicting her from said property through the medium of the husband's partition action. This Court held in Shively v. Shively, supra, that the husband may maintain an action in partition against the wife. No appeal was taken from the judgment of this Court. The right to institute and prosecute the action in partition includes the right of the Court to make such orders as will be necessary to carry the action to a complete consummation. The giving of possession to the purchaser, which would require the eviction of the wife, the payment of costs of sale, including compensation to the attorney for the plaintiff for legal services rendered in the partition action, fall in this category.
The granting, or refusal to grant, a restraining order under the facts fell within the sound discretion of the trial court. State ex rel. Shively v. Nicholas, supra. The trial court exercised its discretion by refusing to grant a restraining order at that stage of the proceedings. With respect to this order we find no abuse of discretion. Subsequently, and seasonably, the trial court did grant a temporary order restraining the sheriff from distributing the proceeds of the sale until the final determination of the action for divorce and alimony. This restraining order protected the plaintiff in the event the Court should later find the assignment to the brother to be invalid and, also, found that the plaintiff was entitled to an award of alimony out of the husband's distributive share of the proceeds of the sale.
The plaintiff-appellant contends for her second assignment of error that the trial court erred in denying the wife's right to an award of alimony out of the husband's interest in the home itself or out of 'assigned distributive share of the partition sale proceeds'. Under this assignment of error counsel for appellant urges two propositions:
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