Goetzel v. Goetzel

• Decision Date: 17 June 1959
• Docket Number: No. 35857,35857
• Citation: 169 Ohio St. 350,159 N.E.2d 751
• Parties: , 8 O.O.2d 355 GOETZEL, Appellee, v. GOETZEL (Dietz, Exrx., Substituted Defendant), Appellant.
• Court: Ohio Supreme Court

Page 350

169 Ohio St. 350

159 N.E.2d 751, 8 O.O.2d 355

GOETZEL, Appellee, v. GOETZEL (Dietz, Exrx., Substituted Defendant), Appellant.

No. 35857.

Supreme Court of Ohio.

June 17, 1959.

Syllabus by the Court

1. Under Sections 3105.17 and 3105.18, Revised Code, a court has the same power in awarding alimony only that it does in awarding alimony where a divorce is granted.

2. Where a wife, in a divorce action instituted by her husband, seeks alimony only and also pleads an agreement by the husband to convey certain real property to her and asks the court to compel her husband to specifically perform that agreement, a decree, allowing her alimony in a certain amount each month but not mentioning said agreement or said real estate, constitutes an adjudication that such wife has no right to compel her husband to specifically perform that agreement to convey that real estate.

3. Where the only apparent purpose of pleading a prior adjudication is to establish such prior adjudication as an estoppel against a claim to the relief sought but such pleading is not sufficient to allege that such prior adjudication is a bar to such relief by way of res judicata, any right to object to a determination that such prior adjudication bars such relief, because not properly pleaded as a bar thereto, is waived if, without objection, evidence is admitted which fully establishes that such prior adjudication does represent an adjudication against a claim to such relief.

Gussie Goetzel, herein referred to as the wife, instituted this action in the Common Pleas Court of Hamilton County in 1954 by the filing of a petition against her husband, Ralph Goetzel, alleging that in 1942, when the wife and her husband 'were living separate and apart,' they entered into a contract providing among other things for the transfer by the husband to the wife 'by good and sufficient warranty deed' of certain real estate, herein referred to as the Arbor Place property, and that the wife 'duly performed all the conditions of said contract on her part, and demanded a conveyance of the said real estate to her, but' her husband 'refused to execute and deliver such conveyance.' The wife asks for specific performance of that agreement to convey and also seeks an injunction against her husband interfering with her use and enjoyment of that real estate.

In his answer, the husband sets forth allegations which he contends made the agreement of 1942 void and of no effect, and, in a second defense, he alleges so far as pertinent:

'* * * On or about October 20, 1954 in case No. A-141460 in the Court of Common Pleas of Hamilton County, Ohio, wherein Palph Goetzel in plaintiff and Gussie Goetzel is defendant, a decree of alimony was entered and provided that Ralph Goetzel pay Gussie Goetzel the sum of one hundred twenty five ($125) dollars per month; this decree was subsequently modified and said alimony payments were reduced to payments of one hundred ($100) dollars per month. At the time of the hearing of said case No. A-141460 the purported written agreement of June 13, 1942 was introduced into evidence and defendant claims at this time that the plaintiff herein is now estopped from making any further claim under said alleged agreement of June 13, 1942.'

So far as pertinent to a consideration of the questions that must be considered, the 1942 agreement reads:

'* * * Whereas, the parties hereto are now temporarily separated and desire to establish some reasonable basis upon which they may live happily together; and

'Whereas, the said Ralph Goetzel desires to secure the said Gussie Goetzel from future want and to provide for her proper maintenance,

'Now, therefore, the parties * * * do hereby agree as follows:

'* * *

'(2) The said Ralph Goetzel agrees to transfer to the said Gussie Goetzel by good and sufficient warranty deed the property known as * * * Arbor Place * * * now standing in his name.

'* * *

'(7) In case of a divorce between the parties the said Gussie Goetzel agrees to accept the transfer of the said Arbor Place property and the assignment of income herein provided for, as a credit on any division of property or allowance for alimony, maintenance and support.

'(8) The said Gussie Goetzel agrees to execute a will devising said Arbor Place property to the said Ralph Goetzel and to maintain such will in full force and effect during her lifetime.'

At the trial, the husband offered in evidence a petition for divorce filed by him against the wife in case No. A-141460 in the Common Pleas Court of Hamilton County, the answer and cross-petition and the amended answer and cross-petition filed by the wife in that case, the husband's answer to that amended cross-petition, an entry in that case signed by the wife withdrawing the prayer for divorce in that amended cross-petition, and the decrees of the court in that case awarding alimony to the wife.

The foregoing cross-petition reads in part:

'Defendant further states that in an agreement previously entered into between this plaintiff and defendant, the plaintiff, Ralph Goetzel, agreed to transfer to this defendant, Gussie Goetzel, his wife, by good and sufficient warranty deed, the real estate known as 2636 Arbor Place, Cincinnati, Ohio, now standing in his name, and which he has neglected to do.

'Wherefore, defendant prays that she may be divorced from this plaintiff * * * and that upon a hearing of this cause, the said alimony order may be made permanent; for attorney's fees and expenses; that she be awarded the real estate known as 2636 Arbor Place, Cincinnati, Ohio, the title to which is in the plaintiff's name at present, and for such other and further relief to which she may be entitled in the premises.'

The amended cross-petition contains the same allegations except that the words 'Norwood, Hamilton County' are substituted for 'Cincinnati.'

The husband's answer to the amended cross-petition reads in part:

'Plaintiff further says that he has neglected to transfer to the defendant herein, Gussie Goetzel, his wife, by good and sufficient warranty deed, the real estate known as 2636 Arbor Place, Norwood, Hamilton County, Ohio, now standing in his name, for the reason that the agreement allegedly entered into on the 13th day of June, 1942, between Ralph Goetzel and Gussie Goetzel, his wife, was caused by the fact that said defendant, Gussie Goetzel, intimidated, threatened, coerced, and mentally tormented him to satisfy her wishes as to the division of his property and further says that said alleged agreement lacks mutuality and is one-sided in favor of the defendant, Gussie Goetzel, a copy of which agreement is hereto attached.

'Plaintiff further says that while he has not as yet transferred the real estate to said defendant, nevertheless, she has, since the signing of said agreement, received all the income from said property, even though under the terms of said alleged agreement said defendant, Gussie Goetzel, as far as this plaintiff knows, has failed and neglected to execute a will devising said Arbor Place property to the said Ralph Goetzel, and to maintain such will in full force and effect during her lifetime.

'Wherefore, plaintiff prays that the court find that said alleged agreement of June 13, 1942 is null and void and find that same is of no effect and that said defendant's cross-petition be dismissed.'

The record in the foregoing case contains the following entry signed by the wife:

'The defendant Gussie Goetzel herewith withdraws from her cross-petition her prayer for divorce and prays the court to grant her prayer for alimony and other relief.'

So far as pertinent, the decree of alimony in that case reads:

'The court further finds that the defendant has proven all of the essential allegations of her amended cross-petition and that by reason thereof, defendant is entitled to permanent alimony and expenses, as prayed for in her amended cross-petition.

'It is, therefore, ordered, adjudged and decreed by the court that the plaintiff pay to the defendant, the sum of $125 per month * * * on the 20th day of each and every month.

'It is further ordered that the plaintiff pay to * * * attorneys for the defendant, the sum of $225 as expenses in this cause, and that the plaintiff pay the costs of this action. * * *' (Emphasis added.)

A subsequent decree made on motion of the husband provides for reduction of the $125 monthly payment to $100.

Neither decree mentions the Arbor Place property or the 1942 agreement.

The Common Pleas Court, by its judgment in the instant case, ordered the husband to convey the Arbor Place property to the wife.

The husband appealed from that judgment to the Court of Appeals on questions of law and fact. Pending that appeal, the husband died and the cause was revived in the name of his executrix.

The Court of Appeals rendered substantially the same judgment as had been rendered by the Common Pleas Court.

The cause is now before this court on an appeal by the executrix of the husband from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record.

Harry Falk and Samuel Flotnick, Cincinnati, for appellee.

Harry Kasfir and Fred Weiland, Cincinnati, for appellant.

TAFT, Judge.

As indicated in the foregoing statement of the case, the wife, in the prior divorce proceeding, not only sought alimony from the husband but she also pleaded in her cross-petition and amended cross-petition the 1942 agreement to convey the Arbor Place property, and she asked the court to order the husband to specifically perform that agreement....