Mendelson v. Mendelson

• Decision Date: 19 November 1930
• Docket Number: 22197
• Citation: 123 Ohio St. 11,173 N.E. 615
• Parties: Mendelson v. Mendelson.
• Court: Ohio Supreme Court

173 N.E. 615

123 Ohio St. 11

Mendelson v. Mendelson.

No. 22197

Supreme Court of Ohio

November 19, 1930

Contracts - Presumption same law governs place of execution and enforcement, when - Separation agreement - Section 8000 General Code - Divorce decree does not terminate such agreement, when.

1. In the absence of pleading and proof to the contrary the presumption obtains that the law of the place where a contract was executed is the same as the law where enforcement thereof is sought.

2. A decree of divorce, which is silent on the subject, does not of its own force terminate a separation agreement previously entered into by the parties pursuant to the provisions of Section 8000, General Code.

This action originated in the court of common pleas of Monroe county. The plaintiff, Esther Mendelson, and defendant, Harry Mendelson, were formerly husband and wife and lived in Pittsburgh, Pennsylvania, and there on January 6,1922 entered into an agreement wherein they agreed to thereafter live separate and apart. The husband agreed to pay the wife $20 weekly until May 1,1922, for the maintenance of herself and their son, Sylvian, then about six years of age, and thereafter to pay $15 weekly for the period of one year for the maintenance of their son, and further agreed "to pay the sum of ten ($10.00) dollars weekly on and after May 1 1923, for the maintenance of said Sylvian Mendelson," and in addition agreed to "purchase the necessary clothes for said Sylvian Mendelson." The parties to this agreement thereafter lived separate and apart.

Upon application of the wife a divorce was granted to her in a Pennsylvania court on June 15, 1922. In that action the custody of the son was awarded to the mother and the decree contained the following provision: "Thereupon all and every the duties, rights and claims accruing to either the said Esther Mendelson or the said Harry Mendelson at any time heretofore in pursuance of said marriage, shall and do cease and terminate." In the action now under consideration the wife sought to recover the amount claimed to be due under and by virtue of the terms and provisions of said separation agreement. Issues of fact made by the pleadings were submitted to a jury, which returned a verdict in favor of the wife in the sum of $1,200, and judgment was rendered therefor.

Upon proceeding in error to the Court of Appeals, that court reversed the judgment of the court of common pleas, holding "that the judgment was contrary to the law and the evidence." Thereafter upon motion the record was ordered certified to this court for review.

Mr. Carl M. Myers, for plaintiff in error.

Messrs. Matz & Matz, for defendant in error.

MATTHIAS J.

The primary question presented by the record is the effect of the divorce decree entered subsequent to the execution of the separation agreement.

The Court of Appeals apparently entertained the view that the separation agreement was valid and binding only during the period of the separation of the parties while still husband and wife. In that court, as also in this court, there was some discussion of the law of the state of Pennsylvania, the separation agreement concededly having been executed in that state; but there is neither pleading nor proof of the law of Pennsylvania, and it is well settled that in the absence of pleading and proof to the contrary the presumption obtains that the law of the place where the contract involved was executed is the same as the law where enforcement thereof is sought. "Where an action or defense depends upon the law of another state, and that law has not been proved, the court will presume it to be the same as that which is in force in its own jurisdiction." 2 Sutherland on Statutory Construction, Lewis' Second Ed., page 610, etc.; Erie Rd. Co. v. Welsh, 89 Ohio St. 81, 105 N.E. , 189.

Agreements such as that here presented are authorized by the provisions of Section 8000, General Code. Full authority for husband and wife to enter into any engagement or transaction is conferred by Section 7999,...