Ashley v. Ashley
| Decision Date | 10 December 1962 |
| Citation | 118 Ohio App. 155,193 N.E.2d 535 |
| Parties | , 25 O.O.2d 13 ASHLEY, Appellee, v. ASHLEY, Appellant. * |
| Court | Ohio Court of Appeals |
Peppers, Romanoff & Moran, Toledo, for appellant.
Green & Green, Toledo, for appellee.
This is an appeal on questions of law from a finding and judgment that the defendant has been guilty of gross neglect of duty and adultery and granting a divorce to the plaintiff.
In his original petition seeking a divorce filed on January 9, 1959, plaintiff charged defendant with gross neglect of duty and on July 23, 1960, after the birth of a second child, he filed an amended petition charging defendant with gross neglect of duty and adultery and, inter alia, alleges that defendant was, in May 1960, delivered with a child, for the paternity of which the plaintiff denies all responsibility, but alleges that the conception of such child and its birth were the result of the defendant's adulterous conduct.
Several days prior to the commencement of the trial defendant filed an answer in which she alleged that the plaintiff had been guilty of gross neglect of duty and extreme cruelty, and a cross petition in which she also sought a divorce on the ground of gross neglect of duty, extreme cruelty and willful absence for more than one year. Over objection of counsel for the defendant that six weeks had not elapsed from the time of service of summons on defendant's cross-petition the court refused a continuance and proceeded with the trial. However, toward the close of the trial counsel for the defendant moved to dismiss the cross-petition without prejudice. At this stage of the proceeding the court announced that it would only permit the cross-petition to be dismissed with prejudice, but after the trial retracted such decision and permitted the dismissal of the cross-petition without prejudice. By the voluntary dismissal of her cross-petition we are of the opinion that any error incident to the trial of the case prior to the expiration of six weeks was waived.
The evidence discloses that the plaintiff, while serving as a member of Congress, married the defendant in Virginia on August 9, 1956, and that thereafter on November 24, 1956, their first child was born. Immediately after the marriage, during the evening of the day thereof, the plaintiff left Washington to engage in his campaign for re-election to Congress. The defendant went to and lived with her sister and the latter's husband until sometime in November when she moved into the plaintiff's Washington apartment. Plaintiff did not return to Washington until January of 1957. Plaintiff testified that the parties shared his apartment for about two weeks, and that from the time he left the apartment until the date of the trial he had never been alone with the defendant.
Defendant testified that she had met the plaintiff on a number of occasions after January 1957, generally at his office. She was not specifically asked whether she had had sexual relations with the plaintiff during the presumed period of conception of the second child nor did she otherwise specifically refute the testimony of the plaintiff that he had no such relations with the defendant after leaving her in 1957 or thereafter. The defendant admitted under crossexamination that the only times she was ever alone with plaintiff from the time of their final separation was once in July and once in August 1959. She testified further that she had no sexual intercourse with any person other than the plaintiff after their separation and also specifically denied that she had ever had any intercourse with the man alleged to have been the father of the second child.
The evidence adduced in support of the charge of gross neglect of duty consists of evidence of outbursts of temper, including some profanity, which could well be attributed to have been provoked by the plaintiff's refusal to live with her and to answer telephone calls made by her to his office seeking support for herself and the first child and also seeking tickets and invitations for social events. These tantrums occurred in the presence of plaintiff and others. Most of the instances occurred in the office of the plaintiff. The evidence adduced on behalf of the defendant tends to show that the plaintiff was guilty of gross neglect of duty, extreme cruelty (including a beating from which she suffered a blackened eye and two broken ribs requiring treatment by a physician) and drunkenness, and there is some evidence tending to show adulterous conduct on his part.
On review of the record, we conclude that the finding that the defendant was guilty of gross neglect of duty is against the manifest weight of the evidence.
The evidence in support of the charge of adultery consists primarily of the birth of a second child on May 5, 1960. During the course of the trial there was introduced in evidence an opinion of the Municipal Court of the District of Columbia in an action brought by the defendant for support of the two children, finding and adjudging that the plaintiff was the father of the second child.
Pursuant to the action brought by the defendant against the plaintiff in the Municipal Court of the District of Columbia, an order was made in 1957 allowing defendant alimony and support for the minor child in the sum of $250 per month. After the second child was born, defendant filed a further application for an increase in alimony and child support, which plaintiff opposed on the ground that he was not the father of the child. After several hearings at which evidence was presented, including a blood test which did not exclude the plaintiff as father of the second child, on June 12, 1961, the aforesaid Municipal Court rendered its opinion in which it reviewed the testimony as well as the law and reached the conclusion that the plaintiff is the father of the second child. The amount of support for the defendant and her two children was increased to the sum of $375 per month from and after July 5, 1961. This opinion was introduced in evidence at the trial of the instant case without objection as an exhibit subject to a stipulation that the judgment was pending upon appeal. Since the hearing of this appeal, we are advised that the Washington judgment has been affirmed upon appeal. It is observed that the issues of separate maintenance of the defendant and support of the minor children are vested in the Municipal Court of the District of Columbia, and may not be relitigated in the instant action for divorce.
In addition to the conceded fact of the birth of the second child, there is some testimony tending to show that the defendant was in the company of a man other than the plaintiff, but not alone or under suspicious or imprudent circumstances. There is also testimony of an acquaintance and a sister of the defendant of admissions by the defendant that this other man was the father of the second child. With respect to this testimony, we...
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