Klump v. Klump

• Citation: 121 N.E.2d 273,96 Ohio App. 93
• Parties: , 54 O.O. 202 KLUMP v. KLUMP.
• Decision Date: 08 February 1954
• Court: United States Court of Appeals (Ohio)

Page 93

96 Ohio App. 93

121 N.E.2d 273, 54 O.O. 202

KLUMP v. KLUMP.

Court of Appeals of Ohio, Lucas County.

Feb. 8, 1954.

Syllabus by the Court.

1. The duty of the husband to support his wife and children, as defined in Section 8002-3, General Code (Section 3103.03, Revised Code) is a primary obligation and as long as the husband is able to do so, the proviso in the statute does not modify the husband's obligation nor have the effect of creating a joint liability of the parties.

2. The statutory duty of the husband to support his wife grows out of the marriage relation and, in the absence of extenuating circumstances, continues after separation resulting from the husband's misconduct.

3. In the amendment of Sections 11990 and 11991, General Code, to Sections 8003-17 and 8003-19, respectively, General Code, the language omitted and added appears to evidence an intention on the part of the Legislature to clarify the statutes and not to soften the mandatory duty which is imposed on the husband by Section 8002-3, General Code, to provide support for his wife and minor children.

4. Alimony is based on considerations of equity and public policy where the husband has been found guilty of misconduct and a divorce has been granted to the wife, the legal as well as the moral obligations of support and maintenance remain essentially the same as during the period when the husband faithfully recognized his marital obligations.

5. Alimony may be awarded out of the future personal earnings of the husband and made payable in installments, and such award may be made in addition to an allowance out of the husband's personal or real property, or both.

Harold T. Hanley, Toledo, for appellant.

Max Britz, Toledo, for appellee.

CONN, Judge.

Plaintiff brought an action in the Common Pleas Court against defendant, wherein she alleged that defendant had been guilty of extreme cruelty and gross neglect of duty towards her. Plaintiff prayed for divorce and alimony and that she be awarded the care, custody and control of the minor children of the parties, together with a reasonable amount for support and maintenance.

In her petition, plaintiff alleged that the parties were married on February 27, 1943; that two children, Sharon, born March 4, 1944, and Donald, born September 7, 1949, were the only issue of said marriage; that defendant is the owner of 10 acres of land fronting on Lewis avenue on which he owns and conducts a business known as The Lewis Avenue Driving Range; that such land, improvements thereon, and other personal property were acquired since their marriage; that plaintiff has been employed for wages and her earnings have been used in the maintenance of the household and the acquisition of such property; and that plaintiff assisted defendant in operating the driving range.

The defendant in his answer admits that the parties are the owners of such property; admits the allegations relative to marriage and children; denies generally the remaining allegations, and alleges that plaintiff has been guilty of gross neglect of duty and extreme cruelty and has separated from defendant several times.

The trial court found that defendant had been guilty of gross neglect of duty towards plaintiff and entered judgment in her favor, awarding her a divorce from defendant and a judgment for 'alimony and property division,' and, also, awarding plaintiff the sole custody and control of the minor children.

The court found that the value of the Lewis avenue property and improvements was $15,000; that there was a mortgage lien on this property of $3,000; and, after deducting $6,000 as 'non-coverture' funds, that 'plaintiff be decreed as alimony and property division $3,000 * * *' and the household goods; and that each party have and retain the automobile then in possession The court decreed further that defendant pay the balance due of $230 on the refrigerator and stove, and pay plaintiff the sum of $25 per week for the support of the minor children and, also, pay court costs and the sum of $150 for plaintiff's attorney.

In plaintiff's appeal to this court, she assigns as errors of the trial court, briefly restated, the following:

1. That the valuation of the land and improvements described in the petition is contrary to and manifestly against the weight of the evidence; error in failing to place a valuation on the 1951 Ford automobile owned by defendant and error in not requiring defendant to repay plaintiff's father money advanced by him for rent of the dwelling house occupied by defendant's family, in the amount of $350.

2. That the court erred in deducting the so-called noncoverture funds from the value of the real estate and in failing to award plaintiff reasonable and proper alimony based on a division of the property acquired during the marriage of the parties, pursuant to provisions of the statutes of Ohio.

3. That the court erred in overruling plaintiff's motion for a new trial, particularly on the ground of defendant's misconduct in misrepresenting to the court that he did not receive any distributive share of his father's estate and also that he was indebted to his father, which had been deducted from his distributive share, and also in debt to his sister for the entire amount to which he was entitled as an heir of his rather.

Plaintiff's appeal is on questions of law and fact. As this is not a chancery case, it can not be appealed on questions of law and fact, and the court, therefore, on its own motion, retains the appeal as one on questions of law.

In giving consideration to the merits of plaintiff's appeal, we shall refer to the evidence somewhat in detail as disclosed in the bill of exceptions and the depositions taken in support of plaintiff's motion for a new trial.

Defendant's charges against plaintiff of gross neglect of duty and extreme cruelty, made in his answer under oath, were not supported by any evidence. On the other hand, the evidence affirmatively shows that during the entire period of the marriage of the parties of nearly 10 years, plaintiff has performed and sacrificially observed her marital duties, and did so under circumstances at times when the necessaries of life, such as food, clothing and shelter were not provided by defendant, although at all times he was well able to do so.

The evidence in this case shows abundantly that defendant has been guilty of gross neglect of duty toward plaintiff and the children of the parties, particularly in that defendant habitually sought the society of persons other than the members of his family, including women; that he spent much of his time playing golf, gambling and being away from home at night; and that the protests of plaintiff were unavailing, though frequently made.

The evidence shows also that plaintiff was obliged to seek employment and work for wages, excepting those times when too ill to do so, in order to provide the necessaries of life for herself and family, in addition to the work of caring for her home and children, and at times was obliged to seek help from her parents to meet rental payments and for food and clothing.

The evidence discloses that over the years the driving range was not very profitable, that defendant continued season after season to operate it, that out of season he worked where he could get work, and that he was capable of earning $2.25 per hour.

Following the final separation of the parties in January 1952 the defendant paid plaintiff the sum of $15 per week towards the support of the children and, until this action was commenced and during its pendency, defendant paid $22 per week pursuant to court order. During all this time plaintiff was employed and her take-home pay was approximately $46 per week. At the same time, plaintiff paid a maximum of $11 to $12 per week for domestic help in caring for the children while she was at work. The weekly expenses for maintaining the home, including rent, heat, light, food and other necessary expenses and not including clothing and medical services, averaged slightly more than $60 per week. It is apparent that the amount paid by defendant following the final separation of the parties was not adequate to meet the living expenses of his family.

Defendant testified that he purchased the ten acres of land on a cash basis for $9,000; that he built a one-room building thereon at a cost of $2,100; that he installed lights and other equipment and also built a fence at a cost of $6,500, for which he is still indebted; that he had borrowed $2,600 from his father; and that he owned the bank at Petersburg approximately $2,800 on a note and mortgage. He testified further that he did not receive anything out of his father's estate, as the amount he owed his father for borrowed money and the amount he owed his sister for care following his mother's death when he was nine years of age, was taken out, that it was agreed his brother and sister should get the rest of his share, and that he did not receive anything. $The statutes of Ohio define the respective rights and duties of the husband and wife, growing out of their marital relationship. We call attention to those which appear to be applicable.

Section 8002-3, General Code (amending Section 7997, General Code, 1951 [Section 3103.3, Revised Code]), provides:

'The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able. If he neglects to support his wife, any other person, in good faith, may supply her with necessaries for her support, and recover the reasonable value thereof from the husband unless she abandons him without cause.'

The statutory definition of the marital obligations of the husband provides the basis upon which an award of alimony to the wife may be made, upon breach of his obligations and duties, as specifically outlined in related sections of the Code, and which are in pari materia. The...