Henry v. Henry

• Decision Date: 02 April 1952
• Docket Number: No. 32723,32723
• Citation: 157 Ohio St. 319,105 N.E.2d 406
• Parties: , 47 O.O. 189 HENRY v. HENRY.
• Court: Ohio Supreme Court

Page 319

157 Ohio St. 319

105 N.E.2d 406, 47 O.O. 189

HENRY v. HENRY.

No. 32723.

Supreme Court of Ohio.

April 2, 1952.

Syllabus by the Court.

1. Where a judgment of the Common Pleas Court depends upon the evidence and inferences to be drawn therefrom, then on an appeal on questions of law only the Court of Appeals is ordinarily authorized to modify that judgment only where the evidence is such as to require such modification as a matter of law.

2. On an appeal on questions of law from a judgment of the Common Pleas Court awarding alimony to a wife where a divorce is granted because of the husband's aggression, the Court of Appeals may not ordinarily substitute its judgment as to what it deems reasonable as an allowance of alimony for the judgment of the Common Pleas Court on the question. A unanimous judgment of the Court of Appeals, doing that and providing a very substantial increase in the amount to be allowed to the wife as alimony, will be treated as a reversal of the judgment of the Common Pleas Court as to alimony on the weight of the evidence.

Plaintiff instituted this action against the defendant for divorce, reasonable alimony, a division of property accumulated during their marriage, and custody of and a reasonable allowance for support of their minor child. Defendant filed an answer to plaintiff's petition and also a cross-petition for divorce and for a just and equitable division of the property of the parties.

After trial, the Common Pleas Court rendered a judgment finding that defendant had 'been guilty of extreme cruelty and gross neglect of duty toward the plaintiff and that by reason thereof the plaintiff is entitled to a divorce * * * upon the aggressions of the defendant * * * and that defendant is not entitled to a divorce'; dissolving the marriage relation between the parties and releasing plaintiff and defendant from the obligations of the marriage; awarding the custody of their minor child to the plaintiff; ordering payment of $200 per month for support and maintenance of the child until 21; providing for defendant's right of visitation of said child; and providing that plaintiff should receive

1. $50,000 as alimony, attorney's fees and litigation expenses, payable in equal annual installments for five years.

2. Rights in insurance policies upon the life of defendant in the amount of $83,000 with all premiums to be paid by the defendant (cash surrender value of policies about $31,000).

3. The home of the parties (claimed by defendant to be worth $50,000 and by plaintiff to be worth less--half interest previously owned by plaintiff).

4. Restitution of defendant's half interest in a farm of about 200 acres.

Thereafter, plaintiff appealed to the Court of Appeals from the judgment of the Common Pleas Court on questions of law and assigned as errors that the Common Pleas Court 'committed errors * * * which were prejudicial to appellant in each and all of the following respects:

'1. The decree and judgment makes inadequate and insufficient alimony, property and other financial provisions for the plaintiff-appellant.

'2. The decree and judgment makes inadequate and insufficient financial provision for the support, care and maintenance of the parties' minor child * * *

'3. The decree and judgment, insofar as it relates to the alimony, property and financial provisions for the plaintiff-appellant and for the support, care and maintenance of the parties' minor child, is contrary to law, contrary to the evidence, is not supported by sufficient evidence, is against the manifest weight of the evidence, is not equitable, is not just, and is not reasonable; each part hereof being a separate ground.'

The Court of Appeals made an order finding 'that there is error manifest upon the face of the record to the prejudice of the plaintiff-appellant in that in view of the uncontradicted evidence and circumstances in this case the provisions of the lower court's judgment and decree for alimony for the plaintiff-appellant are grossly inadequate, insufficient and unreasonable, and fail to comply with Section 11990, General Code; that the lower court abused its discretion because it failed to allow plaintiff-appellant reasonable alimony and to give due regard both for the property which came to the defendant-appellee William C. Henry by marriage and for the time of his real and personal estate at the time of the divorce; that said judgment and decree is in said respects contrary to law; and that substantial justice has not been done to the plaintiff-appellant.'

The order of the Court of Appeals further provides for:

1. The transfer to plaintiff by defendant 'as alimony' of 17,915 shares of common stock of the Northern Ohio Telephone Company (having a value according to plaintiff's arguments of $358,300).

2. Reduction of the $50,000 payment provided for by the Common Pleas Court to $25,000, to be paid within 30 days; and elimination of the rights of plaintiff with respect to insurance policies.

Except for these changes, the judgment of the Common Pleas Court was affirmed.

The cause is now before this court on appeal from the judgment of the Court of Appeals, a motion to certify having been allowed.

Freeman & Freeman, Norwalk, for appellant.

Young & Young, Norwalk, Garfield, Baldwin, Jamison, Hope & Ulrich, Robert F. Lee and William F. Aigler, all of Cleveland, for appellee.

TAFT, Judge.

It is apparent that the judgment of the Court of Appeals gives to plaintiff property and money having a value, according to her argument, of $383,000 in place of property and money having a value of not to exceed $81,000. The undisturbed portion of the judgment of the Common Pleas Court gave to plaintiff property having a relatively insignificant value. If, therefore, the judgment of the Court of Appeals can be called merely a modification of the judgment of the Common Pleas Court, it certainly represents a very substantial modification. In effect, to treat it as a modification would be to regard the words 'modification' and 'substitution' as synonymous. See Smith v. Ray, Supt., 149 Ohio St. 394, 79 N.E.2d 116.

Plaintiff's right to the provision of money and property, made for her by the judgments of the Common Pleas Court and the Court of Appeals, must be based upon Sections 11990 and 11991, General Code. ¹ Those statutes appeared in the General Code under Title IV, entitled Procedure in Common Pleas Court, Division VII, entitled Special Actions, and Chapter 3, entitled Divorce and Alimony. They read so far as material:

'When a divorce is granted because of the husband's aggression, the court shall * * * allow such alimony out of her husband's property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce.'

'Such alimony may be allowed in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or instalments, as the court deems equitable.'

Section 4 of article IV of the Constitution provides:

'The jurisdiction of the courts of common pleas, and of the judges thereof shall be fixed by law.'

It is clear, therefore, that the Common...