Michael Haska v. Evelyn Haska
| Decision Date | 10 February 1989 |
| Docket Number | 1915,89-LW-0483 |
| Parties | Michael HASKA, Plaintiff-Appellee, v. Evelyn HASKA, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Civil Appeal from the Court of Common Pleas Domestic Relations Division Case No. 84 CV 1562
Randal A. Lowry, Cuyahoga Falls, for plaintiff-appellee.
Richard C. Lombardi, Ravenna, for defendant-appellant.
Before EDWIN T. HOFSTETTER, P.J., Ret., Eleventh Appellate Dist and SAUL G. STILLMAN, J., Ret., Eighth Appellate Dist., and RANDALL L. BASINGER, J., Putnam County Court of Common Pleas sitting by assignment.
SAUL G STILLMAN, Judge, Sitting by Assignment.
Appellant, Evelyn Haska, was married to her former husband Kenneth Holmes, in 1960. On July 13, 1970, appellant obtained a Mexican divorce from Mr. Holmes. He was alive at the time and neither party went to Mexico to obtain the divorce. On September 11, 1970, both appellant and appellee, Michael Haska, went to Michigan and were married.
The appellant, Evelyn Haska, and appellee lived together from 1970 until 1979 when she moved out. On October 19, 1984, the appellee filed an action for divorce. His complaint alleged gross neglect of duty and extreme cruelty. A temporary alimony motion was filed and ordered paid. On July 22, 1985, the appellee filed an amended complaint seeking an annulment. This amended complaint alleged that the appellant had never obtained a valid divorce from her former husband.
On September 27, 1985, the appellee filed a motion for summary judgment on his complaint for annulment. A hearing was held before a referee, and the referee recommended the granting of the motion. Objections to the referee's report were filed and later overruled. The trial court granted the motion for summary judgment.
The matter was then appealed to this court on July 14, 1986. The court held "that the matter before the trial court could not be determined by way of a motion for summary judgment since such determination required consideration of matters outside those matters specifically set forth in C.R. 56 * * *." Haska v. Haska (June 19, 1987), Portage App. No. 1715, unreported. However, the court did not address the case on its merits.
The cause was set for trial on August 31, 1987. At trial, the appellant testified that appellee had told her how to obtain a Mexican divorce and had paid for the divorce. Appellee denies these allegations.
The trial court granted the annulment. It is this decision which is at issue in the instant appeal.
The appellant has timely filed the following four assignments of error:
The assignments of error are overruled for the reasons stated below.
In her first assignment of error, appellant contends that the trial court erred in granting an annulment to the appellee. She asserts that the trial court did not have sufficient proof that her former husband was alive at the time of the divorce. She further asserts that there was insufficient proof that the Mexican divorce was invalid.
R.C. 3105.31(B), in pertinent part, provides:
In the instant cause, appellant's contentions are erroneous. The transcript clearly shows that appellant's former husband was alive at the time of the divorce. The appellant testified that, as of July of 1987, her former husband was alive. Appellee also testified that after the Haskas' marriage, he knew that appellant's former husband was still alive. Accordingly, there was sufficient proof that appellant's former husband was alive.
As for appellant's second assertion, a Mexican divorce is invalid and void if it was obtained by a United States citizen who remained within the United States boundaries during the pendency of such action and at no time was within the boundaries of Mexico. Smith v. Smith (1943), 72 Ohio App. 203. In the instant cause, the appellant testified that neither she nor her former husband ever went to Mexico to obtain the divorce. Accordingly, the divorce decree was void and of no force in the United States.
There was probative, credible evidence presented to show that appellant's former husband was alive at the time of the Mexican divorce. Accordingly, the first assignment of error is overruled.
In her second assignment of error, appellant asserts that the trial court erred in granting the annulment. She asserts that there was no corroborating testimony to support the fact that her former husband was alive.
Civ.R. 75(L) provides:
In the instant cause, the testimony that appellant's former husband was alive is supported by other credible evidence. In Thomas v. Thomas (1982), 5 Ohio App.3d 94, the court found that an opposing party may corroborate a party's testimony as long as the testimony is not collusive.
As was previously discussed, the testimony of each party corroborates the other's testimony. They both testified that appellant's former husband was alive at the time of the Mexican divorce and the second marriage. Accordingly, the second assignment of error lacks merit.
In her third assignment of error, appellant declares that the trial court erred in granting an annulment when there was evidence that the appellee knew of the Mexican divorce. She asserts that the appellee did not have clean hands and as such, should have been estopped from seeking an annulment.
In this instance, the appellant is, in effect, asserting that the court's decision was against the manifest weight of the evidence.
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