Slapp v. Slapp
| Decision Date | 29 March 1944 |
| Docket Number | 29655. |
| Citation | 54 N.E.2d 153,143 Ohio St. 105 |
| Parties | SLAPP v. SLAPP. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. After an action for alimony has been filed and a deposit for costs has been made as required by Section 11981, General Code, the determination of the issues raised by an amended petition praying for divorce and alimony, filed without the deposit of additional costs, is not erroneous.
2. Where, in a court of a foreign state, a divorce has been granted to a husband upon substituted service, in which action the court had no jurisdiction of the property rights of the parties, the wife so divorced may file an amended petition for divorce and alimony in an action by her for alimony pending in a court having jurisdiction of the husband so divorced and the property of the parties; and if the evidence warrants the granting of a divorce and alimony to her because of his aggression, except for the fact that he had already procured a divorce in such foreign state, the court has jurisdiction to determine the property rights of the parties and make a division of their property as though it had granted a divorce to the wife because of the husband's aggression.
Appeal from Court of Appeals, Summit County.
On November 2, 1939, Ruth E. Slapp, plaintiff brought an action in the Common Pleas Court of Summit county against Maurice F. Slapp, defendant, charging him with gross neglect of duty and extreme cruelty, and praying for temporary and permanent alimony for her own maintenance and support, there being no children to the marriage.
Upon filing the petition, a deposit for costs was made with the clerk in the sum of $15.35. A summons accompanied by a copy of the petition was duly served upon the defendant the next day, November 3, 1939. On November 13, 1939, a motion for temporary alimony was sustained and the defendant was ordered to pay to the plaintiff, as temporary alimony, the sum of $152.67 per month, which payments have been regularly made. This action was continued from time to time over a period of several months, during which no further pleadings were filed by either party.
On March 9, 1942, the defendant took up a residence in Reno Nevada, and on April 22, 1942, there filed a petition for divorce against the plaintiff in this action. Summons was served upon the plaintiff in Akron, and publication was had in a Reno newspaper. On May 25, 1942, the defendant was granted a divorce at Reno without contest. A day or two later he married, in Reno, a woman as his second wife who had been a resident of Chicago but a visitor in Akron, and who had gone to Reno soon after the defendant took up his residence in that city. A few days after their marriage, the defendant and his newly wedded wife returned to Akron and there took up their residence.
On June 11, 1942, the plaintiff, Ruth E. Slapp, filed an amended petition in her original action charging the defendant Maurice F. Slapp, with gross neglect of duty, extreme cruelty and adultery. The prayer of the amended petition was for divorce, continued temporary alimony, and upon final hearing, permanent alimony. No additional deposit for costs was made.
A summons was issued upon this amended petition which, together with a copy of the amended petition, was duly served upon the defendant. A motion to strike the amended petition, claiming lack of jurisdiction, was filed by the defendant and was overruled.
On July 20, 1942, the defendant filed his answer alleging, among other things, that on May 25, 1942, the District Court of the state of Nevada, had granted him an absolute divorce. He prayed that the amended petition of the plaintiff, Ruth E. Slapp, be dismissed insofar as it prayed for a divorce and equitable relief incident thereto. The plaintiff filed her reply alleging that the defendant had never become, in good faith, a resident of Nevada, and that the alleged decree of divorce granted him in Nevada was fraudulently obtained and therefore void. She prayed that the decree be held null and void.
The trial judge heard evidence as to the respective property rights of the parties and as to the claimed aggressions of the defendant. The court found that the defendant had been guilty of extreme cruelty toward the plaintiff and that she was entitled to a divorce; that the decree of divorce procured by the defendant in the state of Nevada was null and void; and that all the property of the parties should be divided equally between them. A decree was entered accordingly and a motion for new trial was overruled.
An appeal by the defendant and a cross-appeal by the plaintiff were perfected to the Court of Appeals of Summit county, which court, applying the doctrine of the case of Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273, gave full faith and credit to the decree of divorce in Nevada, and reversed that part of the judgment of the Common Pleas Court which awarded a divorce to the plaintiff, Ruth E Slapp. On the other hand, the Court of Appeals affirmed that part of the judgment of the Common Pleas Court which awarded an equal division of the property to the plaintiff.
A motion by the defendant to certify the record of the Court of Appeals was allowed by this court, as a result of which the case is now here for review.
Schnee, Grimm & Belden and Slabaugh, Seiberling, Guinther & Pflueger, all of Akron, for appellant.
Bailey & Bailey, of Akron, for appellee.
The first question to be determined is whether, when an action is filed for alimony alone and there is a compliance with Section 11981, General Code, as to security for costs, and the plaintiff thereafter files an amended petition for divorce and alimony but makes no further deposit for costs, the court has jurisdiction to consider the amended petition.
Section 11981, General Code, provides that 'no clerk of a court of common pleas shall receive or file a petition for divorce or alimony until the party named as plaintiff therein * * * makes prepayment or deposit with the clerk of such an amount as will cover the costs likely to accrue in the action * * * or gives such security for the costs as in the judgment of the clerk is satisfactory * * *.'
Defendant asserts that a claim for alimony and one for divorce, even when set out in the same action, constitute distinct and separate causes of action; that when a cause of action for divorce is subsequently brought into the action for alimony by amendment, it creates a new action requiring new service of process upon the defendant. This claim is predicated on the fact that the residence requirements and the statutory grounds for the two causes of action are different. The defendant then claims that when the plaintiff's petition for alimony was amended by including a cause of action for divorce, it was necessary that a new and additional deposit for costs be made as a prerequisite to jurisdiction.
In the opinion...
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