Gage v. Gage, 34665
| Decision Date | 18 July 1956 |
| Docket Number | No. 34665,34665 |
| Citation | 60 O.O. 117,136 N.E.2d 56,165 Ohio St. 462 |
| Parties | , 60 O.O. 117 GAGE, Appellant, v. GAGE, Appellee. |
| Court | Ohio Supreme Court |
1. Under the amended provisions of Section 3105.18, Revised Code, a trial court may under proper circumstances award alimony to a wife although a divorce is granted to the husband by reason of the wife's aggression.
2. Such alimony may include an allowance from future earnings.
3. Alimony may include an allowance for expenses including reasonable attorney fees, as provided in Section 3105.14, Revised Code.
In the Court of Common Pleas the plaintiff husband instituted this action for a divorce.
To the plaintiff's petition the defendant wife filed an answer and cross-petition seeking a divorce, alimony including attorney fees, and equitable relief.
On March 17, 1955, the trial court awarded a divorce to the plaintiff husband and alimony to the defendant wife. The court also made a division of property and awarded fees to the defendant's counsel.
On the plaintiff's appeal to the Court of Appeals on questions of law, the judgment of the Court of Common Pleas was affirmed.
The cause is in this court for a review by reason of the plaintiff's appeal as of right and the allowance of his motion to certify the record. Harry J. Dworkin and Robert M. Lawther, Cleveland, for appellant.
Edwin C. Reminger, Cleveland, for appellee.
First, it should be noted that the evidence adduced at the trial is not before this court, inasmuch as the plaintiff did not secure a bill of exceptions.
Next, it should be observed that the plaintiff makes no complaint concerning the jurisdiction of the trial court in making a division of the property or as to the fairness thereof.
Rather, the gravamen of his appeal is the allowance of alimony to the defendant wife; and the source of the controversy is the amendment to former Section 11993, General Code, effective August 28, 1951. Prior to that date the section read:
Also prior to that date cognate Section 11990, General Code, relating to a divorce granted because of the husband's aggression, contained similar language.
Effective as of the above date, the substance of the two sections was combined and shortened as Section 8003-17, General Code, and then read as follows:
Then at the time of the recodification two years later in 1953, the first sentence in Section 8003-17, General Code, supra, became a separate provision as Section 3105.16, Revised Code. The remaining portion of Section 8003-17, General Code, was combined with Section 8003-19, General Code, and became Section 3105.18, Revised Code, which, in slightly amended form, now reads as follows:
'The court of common pleas may allow alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either, at the time of decree.
'Such alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, as the court deems equitable.'
The nub of the controversy is the fact that when the General Assembly amended former Sections 11990 and 11993, General Code, the language, 'because of the husband's aggression,' was eliminated from the first section, and the similar words, 'by reason of the aggression of the wife,' from the second.
The plaintiff husband contends that these amendments in no respect changed the meaning of these statutes.
This court, as did the lower courts, finds itself unable to accept this view. As was observed in the case of Clark v. Clark, Ohio Sup., 136 N.E.2d 52, when the General Assembly substantially amends a statute, the courts are not at liberty to...
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Jones v. Jones
... ... Swanson v. Swanson (1976), 48 Ohio App.2d 85, 89-90, 2 O.O.3d 65, 355 N.E.2d 894, citing Gage v. Gage (1956), 165 Ohio St. 462, 60 O.O. 117, 136 ... 903 N.E.2d 340 ... N.E.2d 56. When ... ...
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Robrock v. Robrock, 35185
...this full equity power in a series of cases dealing with alimony. Clark v. Clark, 165 Ohio St. 457, 136 N.E.2d 52; Gage v. Gage, 165 Ohio St. 462, 136 N.E.2d 56; De Milo v. Watson, 166 Ohio St. 433, 143 N.E.2d It certainly must be conceded that the obligation of a husband to support and mai......
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Smith v. Smith
...* * * jurisdiction.' See, also, Section 3105.20, Revised Code; Arbogast v. Arbogast, 165 Ohio St. 459, 136 N.E.2d 54; Gage v. Gage, 165 Ohio St. 462, 136 N.E.2d 56, and De Milo v. Watson, 166 Ohio St. 433, 143 N.E.2d The nearest this court has come to defining the equitable doctrine of lach......
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Hawkins v. Hawkins, 57371
...the better-decided cases in other jurisdictions. Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363, 364 (banc 1946); Gage v. Gage, 165 Ohio St. 462, 136 N.E.2d 56, 59 (1956); Klump v. Klump, 96 Ohio App. 93, 121 N.E.2d 273, 274 (1954); Fuller v. Fuller, 175 Or. 136, 151 P.2d 979, 981 (1944). ......