Beiter v. Beiter
Decision Date | 12 November 1970 |
Citation | 265 N.E.2d 324,24 Ohio App.2d 149 |
Parties | , 53 O.O.2d 361 BEITER, Appellee, v. BEITER, Appellant. |
Court | Ohio Court of Appeals |
Berry & Blanchard, Coshocton, for appellee.
Pomerene, Burns, Milligan & Frase and Eugene R. Weir, Coshocton, for appellant.
The judgment appealed from is for a lump sum amount purportedly for unpaid and delinquent payments under an April 26, 1951 divorce decree which stated:
It was stipulated that there were two children and that they were emancipated March 15, 1958 and August 6, 1961 respectively.
The motion for the lump sum judgment was not filed until December 10, 1969, a full eight and one-half years after the last child to be supported was emancipated.
The trial court committed prejudicial error in refusing to permit the defendant to introduce any evidence that, in fact, the installments had been paid directly to the plaintiff-wife or otherwise extinguished by agreement between the parties or other changed circumstances.
The court took the view, without any supporting evidence, that any payments to the ex-wife, if any, other than those made through the clerk of courts were in law if not in fact gratuities above and beyond the court's order. The defendant husband, appellant herein, was absolutely precluded from adducing evidence to the contrary.
No citation of authority was given, none was offered and none has been found to justify the holding of the trial court. Nor is the position supported by reason.
We hold that the power of a common pleas court to enter a lump sum judgment for installments of alimony and/or support is limited to those installments which are, in fact, unpaid and also undiminished by any facts in abatement or any agreement between the parties.
As between a husband and wife, an agreement between them subsequent to and different from the order of the court will be binding upon the wife in an action by her to recover unpaid installments of the court's support and/or alimony award.
Metzger v. Metzger, 7 Ohio Law Abst. 115; Schnierle v. Schnierle, Ohio App., 33 N.E.2d 674, 33 Ohio Law Abst. 212; Bidinger v. Bidinger, 89 Ohio App. 274, 101 N.E.2d 241; McCabe v. McCabe, Ohio App., 167 N.E.2d 364.
It is to be observed that the order in this case is not for a sum certain payable in installments but rather an order to pay a certain amount periodically until further order of the court. A party against whom a lump sum judgment is sought upon a claim that installments under such an order are unpaid has a right to show that the installments have been, as between the parties, paid, satisfied by agreement or otherwise abated by changed circumstances, and to avail himself of all other appropriate defenses including but not limited to, waiver, estoppel and/or laches. The trial court completely precluded the defendant from all of the foregoing. We hold this to be prejudicial error.
In this particular case, it is unconscionable in equity that any judgment should be entered upon this motion filed 8 1/2 years after the last child was emancipated and the last payment was claimed to have been made by the defendant.
There is also a specific showing of prejudice to the defendant in this case by the failure of the plaintiff over an 18 year period to make any complaint respecting the failure of the defendant to make payments to the clerk of courts. In fact, plaintiff admitted the defendant made periodic payments directly to her but stated; This admitted course of conduct on the part of the ex-wife affirmatively led the defendant to change his position, to his detriment, in reliance thereon. He has not kept his records of payments and the Income Tax Division of the Internal Revenue Service no longer has the records available to corroborate his claim. This fact distinguishes this case from Smith v. Smith, 168 Ohio St. 447, 156 N.E.2d 113 where the court, at page 456, pointed out that no attempt had been made by the defendant there to show he was prejudiced by plaintiff's delay in bringing him to court.
...
To continue reading
Request your trial-
Kinney v. Mathias
...the defense of laches." Finally, Mathias contends that the present case is indistinguishable from the cases of Beiter v. Beiter (1970), 24 Ohio App.2d 149, 265 N.E.2d 324 , and In re Shipley (J.C.1942), 38 Ohio Law Abs. 181 , where the courts held that the wives had acquiesced in their form......
-
Doris E. Heavenridge v. Kathryn D. Heavenridge, Executrix of the Estate of Paul M. Heavenridge
...these factors are present in the instant case. Appellant also relies on Beiter v. Beiter (1970), 24 Ohio App. 2d 149, 265 N.E.2d 324. Again, Beiter distinguishable. In Beiter, although the father was ordered to make payments directly to the court, the mother admitted he had made periodic pa......
-
Rhoades v. Rhoades
...v. McCabe, Ohio App., 167 N.E.2d 364, 83 Ohio Law Abst. 19; Blumberg v. Saylor, 100 Ohio App. 479, 137 N.E.2d 696; and Beiter v. Beiter, 24 Ohio App.2d 149, 265 N.E.2d 324.' We believe that Tressler, supra, pronounces accurately the law in Ohio bearing upon the subject with which we are con......
-
Brenda Jean Weber v. Stephen Murray Weber, 01-LW-5290
...court will be binding upon the wife in an action by her to recover unpaid installments of the court's support and/or alimony award." Despite Beiter, more recent case law suggests agreement between the parties alone is insufficient to modify court-ordered child support. Parents cannot enter ......