Stone v. Stone, 23276

• Decision Date: 03 November 1954
• Docket Number: No. 23276,23276
• Citation: 122 N.E.2d 404,98 Ohio App. 240
• Parties: , 57 O.O. 267 Morris S. STONE, Plaintiff Appellant, v. Evelyn L. STONE, Defendant Appellee.
• Court: Ohio Court of Appeals

Page 240

98 Ohio App. 240

122 N.E.2d 404, 57 O.O. 267

Morris S. STONE, Plaintiff Appellant, v. Evelyn L. STONE, Defendant Appellee.

No. 23276.

Court of Appeals of Ohio, Cuyahoga County.

Nov. 3, 1954.

Jones, Day, Cockley & Reavis, Apple & Apple, Coeveland, for plaintiff appellant.

Ezra Z. Shapiro, Joseph H. Persky, Cleveland, for defendant appellee.

SKEEL, Judge.

This appeal comes to this court on questions of law from an order of the Common Pleas Court of Cuyahoga County granting defendant's motion for alimony pendente lite, interim attorney fees and support for the twelve year old son of the parties, pending final hearing of plaintiff's action for divorce and defendant's cross-petition for separate maintenance and support. The court ordered plaintiff to pay defendant $5,000 interim attorney fees, $1,725 per month temporary alimony and $325 per month for the support of their son.

The plaintiff's petition seeks a divorce on the grounds of gross neglect of duty and extreme cruelty. The defendant's cross-petition seeks separate maintenance and support on the same grounds, denying by answer that she has failed to fully discharge her duties as plaintiff's wife.

The evidence on the motion established that the parties separated February 27, 1954, that is to say, plaintiff claiming good cause left the then address of the parties at 2391 Ashurst Road and took up his place of abode with his parents at 3701 Washington Boulevard in University Heights. Defendant is therefore left in the occupancy of the residence on Ashurst Road. This property is a two-family house owned by defendant and the second floor suite is occupied by her mother at a rental of $75 per month which is paid to the defendant.

The plaintiff is a very successful business man, now worth in the neighborhood of one million dollars with a gross income annually in excess of $105,000. His net income after taxes is between Fifty and Sixty Thousand Dollars.

The defendant's financial standing is substantial. Her total assets including cash bank deposits in the sum of $33,000, government bonds, stocks and the residence valued at $20,000 is about One Hundred Thirty Five Thousand ($135,000) Dollars and her yearly income derived from the foregoing property is approximately $4,800.

The minor son of the parties, now twelve years of age, attends public school and is privately tutored in Hebrew and music in addition to his regular schooling.

The parties, before separation, lived very frugally. Both parties so testified and while the record does not make a full disclosure of the total amount usually expended by them, or either of them, in maintaining the household prior to February 27, 1954, it is clearly evident that the court's order pendente lite gave no consideration to the economic level upon which the parties chose to live or to the defendant's needs but rather based the order entirely on the plaintiff's ability to pay.

The appellant's of error is that the court in ordering plaintiff appellant to pay $1,725 per month as temporary alimony and $325 per month as support for the minor child, or a total of $2,050 per month, plus $5,000 interim attorney fees, constituted an abuse of discretion.

Section 3105.14 R.C. provides:

' § 3105.14. Allowance pendente lite. On notice to the opposite party of the time and place of the application, the court of common pleas, or a judge thereof in vacation, may grant alimony to either of the parties for his sustenance and expenses during the suit and allowances for the support of minor children of the marriage or by adoption during the pendency of the action for divorce, or alimony alone. When an appeal is taken by either party, the court of appeals, or a judge thereof in vacation, may grant like alimony and support during the pendency of the appeal, upon like notice.'

It is to be noted that this section empowers but does not require the court upon on a proper showing and in a proper case, to award reasonable interim expenses temporary alimony and support to a party in a divorce action. A party is not entitled to such an award as a matter of right. Whether or not an award should be made either for temporary alimony or interim expenses (attorney fees) is within the sound discretion of the court, giving due consideration to surrounding facts and circumstances. The factors to be considered in making such awards are the ability of the party against whom the award is made to pay the same, and the present needs of the party in whose favor the award is given, judged by the standard upon which the parties lived prior to the time domestic difficulties occurred, provided such standard was the free choice of the parties during such period of time.

In this case the plaintiff husband, in seeking a divorce from the defendant wife on grounds of extreme cruelty and gross neglect of duty, must, until final hearing of the case, as head of the household, Section 3103.03 R.C., continue to support both his wife and child in the manner as was his custom prior to the divorce action, when there is no claim that the standard previously maintained was not the free choice of the parties or wholly inadequate. And this obligation of support continues until the final decree, regardless of the wife's financial ability to provide for her own needs. Englund v. Englund, 92 Ohio App. 527, 110 N.E.2d 35.

In the case of Norton v. Norton, 111 Ohio St. 262, at page 269, 145 N.E. 253, at page 255, the supreme court in dealing with the question of the legal basis of an order of alimony pendente lite, said:

'The right to the amount is to be determined by the wife's necessities and by the husband's means.'

The only purpose of such an award is support and not a means of allowing a wife a proportionate share of her husband's income. In many jurisdictions, the right to temporary alimony is not only dependent upon the wife's needs...