Slansky v. Slansky

• Decision Date: 18 January 1973
• Citation: 293 N.E.2d 302,33 Ohio App.2d 127
• Parties: , 62 O.O.2d 235 SLANSKY, Appellee, v. SLANSKY, Appellant.
• Court: Ohio Court of Appeals

Page 127

33 Ohio App.2d 127

293 N.E.2d 302, 62 O.O.2d 235

SLANSKY, Appellee, v. SLANSKY, Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 18, 1973.

Syllabus by the Court

1. The term 'dwelling' as used in R.C. 3103.04 refers to any place of abode that has been used as the matrimonial home. A three-year absence from that home by a wife in whose name title is vested does not destroy its character as her 'dwelling' under the purview of that statute.

2. The effect of R.C. 3103.04 which provides that neither husband nor wife has any interest in the property of the other, but that 'neither can be excluded from the other's dwelling, except upon a decree or order of injunction made by a court of competent jurisdiction' is not to be determined in the abstract, but in light of domestic relations law as a whole, so that the phrase 'of competent jurisdiction' refers to the courts having jurisdiction in domestic relations cases, and not to any court having authority to decide questions touching on property rights, per se.

3. The Municipal Courts have power to determine cases in forcible entry and detainer, but they are without jurisdiction to determine domestic relations cases, and may not determine that one or the other may be excluded from the marital home pursuant to R.C. 3103.04.

Sharratt & Willimann, Cleveland, for appellee.

Palmquist & Courtney, Medina, and Donald J. Shell, Akron, for appellant.

JACKSON, Judge.

This appeal presents the question of whether a wife may avail herself of an action in forcible entry and detainer to exclude her husband from the marital dwelling.

In 1971, Laura Slansky, plaintiff appellee, brought this suit in Berea Municipal Court to oust Robert Slansky, the appellant, from the house which they had shared as husband and wife until 1967. The complaint alleged that the appellant had 'entered upon . . . (the) premises as the husband of the plaintiff and has failed to pay rent to plaintiff in any amount whatsoever while occupying said premises.' However, the appellee introduced no evidence of any rent or lease agreement between the parties, and it is apparent from the arguments and evidence presented at trial that Mrs. Slansky based her claim upon the fact that she held title to the property.

The testimony of the parties instead focused almost entirely upon the history of their marital relationship and upon the ownership aspects of the property in dispute. The record discloses that the property was acquired during the parties' marriage, sometime between 1941 and 1942. Mrs. Slansky testified that the lot was purchased with funds received for the death of one of their children, although she did not elaborate on whether this money was originally paid to her, or her husband, or to both. The plaintiff wife testified that she and her husband built the house over a long period of time with the money for materials being derived from their respective employment with the National Carbon Corporation, and this testimony was not contradicted. However, appellant husband admitted that title to the property was vested in the name of his wife.

It is evident that the marriage relationship between the parties has not been characterized by harmony and tranquillity. The record does not disclose the date of their marriage, but it appears from the testimony that the Slanskys were first divorced in 1949. This, however, did not have much of an impact upon the parties for they continued living together as man and wife, eventually bearing two children. However, in 1967 their marriage again ran aground. Prompted by a domestic quarrel and by the generally uninhabitable conditions of the house, ¹ Mrs. Slansky moved out. She filed a divorce action against her husband shortly thereafter, but the divorce was denied. Since 1967, the appellant has remained in the marital dwelling while the appellee has lived elsewhere. At trial both parties regarded themselves as being married to one another, and for the purposes of the case we assume that the parties were still legally married at the time this action was brought.

At the conclusion of the evidence, the court found the husband guilty of unlawfully detaining the premises and ordered restitution. The appellant has appealed this judgment, assigning as error that the judgment is contrary to law; he argues that the Municipal Court did not have jurisdiction over this controversy by virtue of R.C. 3103.04. ²

Hardly a paragon of legislative draftsmanship, this statute does not specifically preclude a municipal court from effecting spousal exclusions from the marital dwelling through a forcible entry and detainer action. Yet, the historical evolution of this enactment, when examined in relation to the experience of other jurisdictions in coping with the same problem, has persuaded this court that appellant's contention has merit. The Berea Municipal Court should have dismissed this case for lack of jurisdiction.

R.C. 3103.04 is part of a compendium of legislation constituting Ohio's Married Women's Act. ³ As the Nineteenth Century precursor of today's women's liberation movement, this Act was part of a national campaign to sweep away the common law web of limitations and disabilities which had entangled a married woman's rights to own and dispose of property, to make binding contracts, and to sue and be sued in an individual capacity. With respect to real property, the restrictions had been particularly severe. For all practical purposes, the husband became the owner of the wife's realty solely as an incident of marriage. He was entitled to the possession, control and use of her land, and he could additionally claim the rents and profits derived therefrom. ⁴ It has even been suggested that while the husband could not sue the wife in ejectment or trespass, he could oust her from their property, her only recourse being that she could pledge her husband's credit for necessaries. ⁵ Like its counterparts in other states, the Ohio Act remedied these fundamental inequities by explicitly creating the legal right of a married woman to hold and dispose of her own separate property and by abolishing for the most part the husband's legal interests in her property. ⁶ But this Act stood apart from the others in that it flatly prohibited the exclusion of either spouse from the other's dwelling and was broad enough to include exclusions that were the result of self-help as well as those secured through judicial relief. ⁷

The reasons which actually motivated the legislature to engraft this severe limitation on not only the wife's newly fashioned right to own and control property but also on the more ancient correlative rights of the husband have, of course, been lost in time. ⁸ One plausible explanation is that the General Assembly was unfavorably influenced by the New York experience with spousal exclusions prior to 1887. Two decisions stand out. In Minier v. Minier, ⁹ a married woman brought an ejectment action against her husband to recover possession of a home owned by the wife and previously used as the marital dwelling. The husband had apparently driven the spouse out of the home. In construing the New York Act, the court held that '(i)n regard to the property, the relation of husband and wife does not affect it; as the parties are strangers to each other,' ¹⁰ and on this basis affirmed the judgment for the wife. Subsequently, in Wood v. Wood, ¹¹ the high court of New York reached the same result in an almost identical fact situation as in Minier. Property had been conveyed to the wife for life for her sole and separate use. The property also had been occupied as the marital dwelling, but, by reason of the husband's conduct, the wife left. She eventually filed an ejectment action to remove the husband and restore herself to possession. In applying the married women's act, the court held that the husband had no legal or equitable interest in the property and by virtue of her title in the land the wife was entitled to sole and absolute possession.

The New York courts cannot be faulted for attempting to follow the unqualified language of that state's Married Women's Act. But it may be argued that a price was paid for vindicating the wife's legal interest in the marital dwelling. For the family home represents more than a bundle of property rights and privileges which the owner is entitled to assert against the rest of the world. Beyond its more primitive function of sheltering the husband and wife from the physical elements, it ideally provides the requisite sanctuary in which a marriage relationship can take root and grow. It has been said that in marriage a husband and wife acquire a personal as well as a legal right to each other's conjugal society. ¹² The marital home offers a place wherein spouses may enjoy each other's society as they meet their obligations of mutual respect, fidelity and support. ¹³ Where a spouse is denied access to the matrimonial home, as was the result in the cases discussed above, these rights and obligations are invariably disturbed. The Ohio Legislature may very well have believed that these marital rights were entitled to just as much protection as the property rights in the home and that the most effective means to accommodate them as they converged in the dwelling was to prohibit exclusions entirely.

Attributing such a belief to the legislating body is not unreasonable. Just nine years preceding the passage of the Ohio Act, in the seminal case of Manning v. Manning, ¹⁴ the North Carolina Supreme Court warned of the disruptive impact which spousal exclusions might have upon marriages. Relying upon her rights under that state's Married Women's Act, the wife had brought an ejectment action against the husband to recover possession of her land which he had assumed control and from which he had been appropriating the rents and profits. While the court upheld the granting of a writ of possession, thus restoring the...