Bolinger v. Bolinger

• Citation: 551 N.E.2d 157,49 Ohio St.3d 120
• Decision Date: 28 February 1990
• Docket Number: No. 88-1802,88-1802
• Parties: BOLINGER, Appellant, v. BOLINGER, Appellee.
• Court: United States State Supreme Court of Ohio

Page 120

49 Ohio St.3d 120

551 N.E.2d 157

BOLINGER, Appellant, v. BOLINGER, Appellee.

No. 88-1802.

Supreme Court of Ohio.

Submitted Nov. 22, 1989.

Decided Feb. 28, 1990.

Syllabus by the Court

The subject-matter jurisdiction of a trial court to award permanent alimony and to formulate an equitable division of the marital assets commences when either party files a complaint for divorce and a division of the marital property. (R.C. 3105.011, 3105.17 and 3105.18, construed.)

Petitioner-appellant, Judith Bolinger, and respondent-appellee, George Bolinger, were married in 1953. This marriage produced five children. At the time this action began, only one of the children had not attained the age of majority.

In October 1981, the parties separated and appellant filed a complaint in the court of common pleas for alimony only, custody and support of the minor child, and a temporary restraining order requesting that appellee be prohibited from disposing of the marital assets of the parties. On October 27, 1981, the trial court granted the temporary restraining order against appellee, and on December 30, 1981, the court ordered appellee to pay appellant temporary alimony and child support, and granted appellant custody of the minor child.

On January 20, 1982, the appellee filed an answer and a counterclaim for divorce, alleging extreme cruelty and gross neglect of duty by appellant. Then, on August 17, 1982, the appellant filed a motion with the trial court requesting that appellee be found in contempt for failure to pay alimony and child support in accordance with the prior court order. In November 1982, appellee responded by filing a motion for a reduction in the amount of temporary alimony and child support based on a change of financial circumstances. Following a hearing on the contempt motion, the trial court determined appellee's arrearages and continued the matter to permit appellant to present evidence on appellee's ability to pay his arrearages in temporary alimony and child support.

Subsequently, on August 8, 1983, a hearing was held by the trial court. Upon an agreed stipulation of the parties, the appellant was granted leave to file an amended complaint for divorce on the grounds that the parties had lived separate and apart for one year. By journal entry dated March 27, 1985, the appellant was granted a divorce on the grounds that the parties had lived separate and apart for one year. The trial court reduced the prior temporary alimony award and ordered appellee to pay accumulated arrearages in alimony and child support. The court also divided the marital assets and made a distribution of these assets to the parties.

Upon appeal, the court of appeals reversed and remanded. The appellate court held that "[i]n view of the fact that the amended complaint for divorce was never filed by * * * [appellant], the trial court was without authority to entertain * * * [appellant's] request for a divorce or to enter judgment on the basis of such complaint. * * * Given the absence of * * * [appellant's] amended complaint for divorce, the trial court was without authority to enter an order for permanent alimony or to formulate an equitable division of the parties' marital property."

On remand, the cause was scheduled for a pretrial conference on December 16, 1986. At that time, the trial court noted that the original complaint for divorce had been amended by appellant. In an amended judgment entry dated January 29, 1987, the trial court granted the appellant a divorce, and essentially reinstated all the other orders and findings rendered in the prior journal entry that awarded alimony and divided the marital property. This judgment was rendered without the trial court's receiving any further evidence.

Upon further appeal, the court of appeals once again reversed and remanded. The appellate court held that since the parties did not stipulate the earlier testimony rendered in the first proceeding, " * * * the trial court was obligated to rehear the case in its entirety."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Patrick J. Alcox, Cleveland, for appellant.

Donald W. Hill, Warren, for appellee.

SWEENEY, Justice.

The determinative issue before us is whether the trial court was obligated to retry the entire case on remand, or whether the original award of alimony and property division was proper irrespective of the propriety of the original divorce decree. Since we believe that the original award of alimony and division of marital assets was proper in any event, we reverse the decision of the court of appeals below.

The appellee-husband contends that the trial court was duty-bound to retry the entire case (i.e., the divorce, property settlement, and alimony award) on remand because the subject-matter jurisdiction of a court in a divorce action is markedly different from that in an alimony-only action. The appellant-wife counters that the appellee's argument claiming a distinction in the jurisdiction of a domestic relations court between a divorce action and an alimony-only action is basically superfluous because the domestic relations court always possesses jurisdiction to make a division of property in either case. In support of her argument, appellant relies on our prior decisions in Goetzel v. Goetzel (1959), 169 Ohio St. 350, 8 O.O.2d 355, 159 N.E.2d 751; and Griste v. Griste (1960), 171 Ohio St. 160, 12 O.O.2d 176, 167 N.E.2d 924.

R.C. 3105.011 provides as follows:

"The court of common pleas including divisions of courts of domestic relations, has full equitable powers and jurisdiction appropriate to the determination of all domestic relations matters. This section is not a determination by the general assembly that such equitable powers and jurisdiction do not...