Saslow v. Saslow

• Decision Date: 15 March 1957
• Citation: 104 Ohio App. 157,147 N.E.2d 262
• Parties: , 4 O.O.2d 230 SASLOW, Appellant, v. SASLOW, Appellee.
• Court: Ohio Court of Appeals

Page 157

104 Ohio App. 157

147 N.E.2d 262, 4 O.O.2d 230

SASLOW, Appellant, v. SASLOW, Appellee.

Court of Appeals of Ohio, Montgomery County.

March 15, 1957.

Syllabus by the Court.

1. A restraint against a second marriage is an exception to the general rule that a general restraint against marriage is against public policy and void.

2. Where a restraint against marriage is not general, but is merely partial or temporary or otherwise limited in effect, the question of its validity depends upon the reasonableness of the restraint; and where, in a divorce action, a wife is given custody of the children of the parties and awarded real estate, free from claims of the husband, in full payment of alimony, such children are ten and thirteen years of age, respectively, the divorce decree sets a limitation of three years on such restraint and a partial forfeiture only is prescribed in the event of remarriage, such conditions are reasonable and valid.

3. A wife was granted a divorce and given custody of the two minor children of the parties, and was given certain real estate, free from any claims of the husband 'in full payment of permanent alimony,' with the agreement that should she remarry within three years she would execute 'a warranty deed to a trustee for a one-third interest in the real estate to each of the two children.' She subsequently sold the real estate and reinvested the proceeds of the sale in another residential property and, later, within the three-year period, remarried. A contempt proceeding was instituted against her for her refusal to convey to a trustee the children's interest in either of the two properties. Held: The court had not acquired jurisdiction in the contempt proceeding and was not authorized to punish the wife for contempt for her refusal to execute such conveyance.

Jacobson, Durst, Pollak & Jacobson, Dayton, for appellant.

Pickrel, Schaeffer & Ebeling, Dayton, for appellee.

WISEMAN, Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court, Division of Domestic Relations, Montgomery County, wherein plaintiff, appellant herein, was found guilty of contempt of court, and was ordered confined in the county jail until such time as she purged herself of such contempt.

The record shows that on November 21, 1952, appellant was granted a divorce by reason of the aggression of the husband, the defendant, appellee herein, and in the decree the appellant was given the custody of the two minor children of the parties, who were then thirteen and ten years of age, respectively.

By the terms of the separation agreement the appellant was given the real estate located at 256 Hadley Avenue, Dayton, Ohio, the title to which was already in her name, free from any claims of the husband, 'in full payment of permanent alimony.' The separation agreement provided for support of the children. There was no reservation of jurisdiction in the decree.

The principal question presented on this appeal involves Item 15 of the separation agreement, which provides as follows:

'Said wife agrees not to marry for a period of three years, however, if she does, then she shall execute a warranty deed to a trustee for a one-third interest in the real estate to each of the two children for their use and benefit; in the event she does not marry after the expiration of the three-year period, she shall have full control of said real estate.'

Obviously, the real estate referred to is the Hadley Avenue property. The record shows further that on February 26, 1954, the appellant, then unmarried, sold and conveyed the Hadley Avenue property to a third person and, on the same day, reinvested the proceeds of the sale in another residential property on Le Fevre Drive, taking the title in her name; that the properties are of comparable value; than on October 28, 1954, within the three-year period, appellant remarried. On June 7, 1955, the appellee instituted this proceeding against the appellant in the divorce case by filing a motion in which the above facts are alleged, and the further fact that appellant refuses to convey to a trustee the children's interest in either the Hadley Avenue or the Le Fevre Drive properties. Evidence was presented on the motion which resulted in a finding that appellant was guilty of contempt. The appellant was required to show cause why she should not be punished for contempt, or in the alternative to purge herself of such contempt. Subsequently, the case came on for hearing, at which time the court found appellant to be still in contempt, and ordered her confined in the county jail until such time as she purged herself of such contempt by executing a deed to a trustee for the children's interest in the Le Fevre Drive property. From that order this appeal was taken.

Appellant contends that Item 15 was a restraint against marriage and, therefore, void; that the court had no jurisdiction to punish for contempt for failure to execute said deed. Appellee contends that the court did not exhaust its jurisdiction in the divorce action; that the court's jurisdiction was continuing; that in equity the court may follow the res and impress a trust on the Le Fevre Drive property, for the benefit of the children.

Is the 15th item in the separation agreement void on the ground that it is a restraint against marriage? The agreement provides: 'Said wife agrees not to marry for a period of three years, however, if she does, then she shall execute a warranty deed,' etc.

This provision is phrased as a restraint on the right of the appellant to remarry. The general rule is that a contract which is a general restraint against marriage is against public policy and void. Counsel have not briefed this question. There is a dearth of authorities in Ohio. Through independent research the court found King v. King, 63 Ohio St. 363, 59 N.E. 111, 52 L.R.A. 157, which applied the general rule and held that a general restraint against marriage was against public policy and void, but permitted the plaintiff to recover for personal services on the ground that the consideration was divisible and that the promise to pay for personal services was supported by a baluable consideration. In the instant case a different situation is presented. We find no case in Ohio touching the precise question presented here. This subject is treated in 35 American Jurisprudence, beginning at page 346; and in 122 A.L.R., beginning at page 7. The question more frequently arises in regard to wills or deeds, but the same considerations of public policy which operate to invalidate conditions in restraint of marriage in wills or deeds apply where the restraint is imposed by contract. 35 American Jurisprudence 355, Section 252.

What is the legal effect of the incorporation of the separation agreement in the decree? It has been held that in approving and adopting the separation agreement, and in attaching it to the decree and making it a part thereof, as in the instant case, the court made the separation agreement a part of the decree, and the provisions of the separation agreement became a part of the order of the court. Holloway v. Holloway, 130 Ohio St. 214, 216, 198 N.E. 579, 154 A.L.R. 439. On page 216 of 130 Ohio St., on page 580 of 198 N.E. the court said:

'There is nothing in the law to render a decree invalid or ineffectual merely because it is predicated upon an agreement of separation, which agreement is incorporated bodily in the decree. A decree which incorporates an agreement is a decree of court nevertheless, and as soon as incorporated into the decree the separation agreement is superseded by the decree, and the obligations imposed are not those imposed by contract, but are those imposed by decree, and enforcible as such.'

And at page 217 of 130 Ohio St., at page 580 of 198 N.E. the court said:

'It is true that a mere contract to pay alimony can not be enforced by contempt proceedings. But, as we stated above, in the instant case it is not the contract which is sought to be enforced, but the decree of court. Consequently, the inquiry is not whether the alimony obligor has paid the amounts provided for in the contract, but whether he has paid the amounts ordered by decree of court. The husband's obligation to pay rests upon the decree.'

However, we look to the agreement to determine whether any portion thereof was invalid. The decree would not avlidate an otherwise invalid provision. If the provision against remarriage was invalid, it did not become valid by being incorporated in the decree. We must first determine the validity or invalidity of this provision on the basis of contractual relations and obligations.

From the review of the case law in other jurisdictions in 35 American Jurisprudence and 122 A.L.R., supra, we extract certain general principles. There is a want of harmony in the decisions of the courts of the several jurisdictions, not because of any ambiguity in the rule itself, but for the reason that the application of the rule to each particular case is submitted to the sound discretion and judgment of the court. There have been engrafted upon the general rule numerous refinements and subtle distinctions respecting partial and absolute restraints, real and personal estate, conditions precedent and conditions subsequent, gifts with or without valid limitations over, partial or total forfeiture of estate, etc. In the case at bar, the restraint is for a limited period, with a condition subsequent and only a partial forfeiture of estate. Where the restraint is not total or general, but is merely temporary, or otherwise limited in effect, then the condition may or may not be void, depending upon whether the restraint is found to be reasonable or otherwise. 35 American Jurisprudence 355, Section 252. An unreasonable restraint of marriage is void, although it is for a limited period. 35 American Jurisprudence 358, Section 256. Reference is made to the annotations in 49 L.R.A.,N.S., 633....