Van DeRyt v. Van DeRyt

• Citation: 35 O.O.2d 42,6 Ohio St.2d 31,16 A.L.R.3d 271,215 N.E.2d 698
• Decision Date: 30 March 1966
• Docket Number: No. 39594,39594
• Parties: , 16 A.L.R.3d 271, 35 O.O.2d 42 Van DeRYT, Appellee, v. Van DeRYT, Appellant.
• Court: United States State Supreme Court of Ohio

Page 31

6 Ohio St.2d 31

215 N.E.2d 698, 16 A.L.R.3d 271, 35 O.O.2d 42

Van DeRYT, Appellee, v. Van DeRYT, Appellant.

No. 39594.

Supreme Court of Ohio.

March 30, 1966.

Syllabus by the Court

1. The failure of a party to appeal from a judgment does not serve as a bar to a later attempt, after term, to vacate the judgment.

2. Where a party files a motion after term to vacate a judgment for irregularities, he does not invoke the court's inherent power to vacate but only its statutory power under Section 2325.01 of the Revised Code.

3. Although Section 2325.10 of the Revised Code provides for a three-year limitation period in which to file a motion to vacate under Section 2325.01(C) of the Revised Code, the defense of laches may shorten such period in an appropriate case.

4. Where, in a divorce proceeding, a cross-petitioner (wife) for a divorce protests three times during the trial of such cause that she does not want a divorce, it becomes the duty of the trial court either to dismiss the case or to ascertain whether she in fact desires to continue with the proceedings. A failure of the trial court to perform its duty as herein outlined constitutes an irregularity and is a ground for vacating a judgment pursuant to the provisions of Section 2325.01(C) of the Revised Code.

Joseph J. Van DeRyt and Eleanor D. Van DeRyt were married on October 26, 1933, and have had five children. On June 28, 1962, Joseph J. Van DeRyt filed a petition for divorce. Defendant Eleanor D. Van DeRyt, denied the material allegations of the petition in her answer and also cross-petitioned for divorce. Plaintiff answered with a general denial.

When defendant refused to accept or sign the property settlement which had been suggested by the trial court in conference, plaintiff withdrew his petition and allowed defendant to proceed on her cross-petition.

Defendant testified that the plaintiff had left home five times, the last time being for approximately thirteen months, that plaintiff was associating with another married woman, and that plaintiff threatened defendant that he would start a fight with the husband of the other woman if she, defendant, talked with him.

Then the court asked the following questions:

'Q. What is the situation with reference to the Church-you are both Catholic? A. Yes, we are. He, while running with this girl, carried a Rosary in his pocket.

'Q. Have you sought permission from the Church? You, personally? A. No, I would say no because I do not want a divorce. We have five children.

'Q. But he is involved with another woman? A. Yes, it has gone on for years. I trusted him, sir. He cannot keep up two women in a home and children. He is a swell fellow but he is in trouble.

'Q. We like to help people whenever we can-in so many cases, as the attorneys will tell you-A. Those two little boys need their father.

'Q. What should have been done has been done. When they come here we are helpless to do anything further. A. For my two little boys I do not want a divorce.

'Q. The best thing I can do is to straighten out the situation. A. Please, sir, we have been raising the children Catholic * * *.' (Emphasis added.)

Rose Wene, sister of the defendant, was the next witness. She testified that defendant was a good mother and housewife and that plaintiff had been absent for thirteen months.

Helen Flanagan testified that both parties were 'wonderful' but that plaintiff had left the defendant.

Hugh Stump, brother of defendant, testified that defendant was a good wife and mother, that plaintiff had left her, but that he was not qualified to put the blame on either party.

That concluded the evidence of record. Gilday, counsel for plaintiff, cross-examined no witnesses and introduced no evidence on behalf of the plaintiff.

Hopkins, counsel for defendant, then said that both attorneys agreed that reconciliation was impossible and that the two parties would not live together again. Then after the court declared that it would grant the divorce, Hopkins asked that the court order his client to sign some internal revenue forms acquiescing in the previous forgery of her signature on an income-tax return.

Quite agitated, defendant stated that she would not sign. She continued:

'Mrs. Van DeRyt: I am interested in justice and not in money. This man has walked out on me five times. After five children and running with a 26-year-old girl, why should I save his neck. No. You should see that little baby-faced boy of mine. If you look in his face you would feel sorry for him.

'The Court: We are ordering you to sign these forms.

'Mrs. Van DeRyt: I would not sign it. Let him burn-Internal Revenue told me not to sign it.

'Mr. Hopkins: May I say to your Honor, you make the order. Let me see what I can do.

'The Court: This is the court's order-that you execute the forms and that she is to be saved harmless. We will help you with it.

'Mrs. Van DeRyt: Who is getting the divorce?

'Mr. Hopkins: You are getting the divorce.

'Mrs. Van DeRyt: I don't want it.

'The Court: The court will help you further. Draw your entry-if you need a conference, we are available.

'Mrs. Van DeRyt: (as she left counsel table) Goodbye, Joe.' (Emphasis added.)

On July 25, 1963, a decree of divorce was journalized. On July 26, 1963, plaintiff and his girl friend made application for a marriage license. On August 1, 1963, they were married.

On January 13, 1964, defendant filed a motion to vacate the divorce decree because of irregularity in obtaining judgment. Attached to the motion was defendant's affidavit that she did not want a divorce, that she told the court that she did not want a divorce, but that she received a divorce. It stated further that defendant filed a cross-petition because her then counsel told her it was necessary to protect her best interests and that it did not mean that she would have to get a divorce. Three affidavits were also attached in support of defendant's statement.

The trial judge, upon hearing and oral argument, overruled the motion to vacate. The Court of Appeals 'reluctantly' affirmed, stating three 'cumulative' reasons in its opinion: (1) 'the failure of appellant * * * to make it clear to the court below * * * that her protestations against divorce were intended to be a dismissal of the prayer therefor in her cross-petition,' (2) the six-month delay in filing the motion, and (3) the plaintiff's remarriage.

This court allowed appellant's motion to certify the record in this case because it presents questions of 'great general interest' which concern the role of the trial court in divorce cases.

Gilday & Gilday and Bernard J. Gilday, Jr., Cincinnati, for appellee.

Taft, Lavercombe & Fox and Robert R. Lavercombe, Cincinnati, for appellant.

HERBERT, Judge.

Although the record may read like a comedy to some, to those who esteem the integrity of the administration of justice and the sanctity of marriage the record unreveals a tragic story.

The spectre of collusion lurks beyond the page corners of the record, eluding definite proof. The case at bar, in our day, justifies the following perceptive statement of Judge Hitchcock in Harter v. Harter (1832), 5 Ohio 318, 319:

'Perhaps there is no statute in Ohio more abused than the statute concerning 'divorce and alimony.' Perhaps there is no statute under which greater imposition is practiced upon the court, and more injustice done to individuals. It seems to be considered by a great portion of our community, that the marriage contract is the least obligatory of all others (sic), and that nothing more is necessary to dissolve it than that application should be made to this court (the Supreme Court, prior to 1843, had exclusive divorce jurisdiction), to register a decree to this effect.'

The law of Ohio now is, of course, to the contrary, Section 3105.01, Revised Code, but the widespread attitude of disregard for the marriage contract is still a grave cause of concern.

These well-known facts make it incumbent on a trial court to be vigilant in its regard for the legislated divorce policy of this state. Judge Zimmerman, in State ex rel. Haun v. Hoffman, Judge (1945), 145 Ohio St. 31, 32, 60 N.E.2d 657, 658; succinctly stated the Ohio law on this point:

'Because of the interest of the public in the preservation of the marital status, divorce suits are accorded different treatment from ordinary civil actions, and it becomes the duty of a court in such cases to be vigilant against collusion and to see that there is compliance with the applicable statutes.' (Emphasis added.)

The integrity of the judiciary suffers when it yields to pressures which seek to sap the strength from our statutes. If a dilution of the divorce laws is desired, the petition for change should be placed before the General Assembly and not filed with a court.

The appellant seeks a vacation of the divorce decree, after term, on the ground of irregularity in the proceedings of the trial court. Before that claim matures for our consideration, some threshold questions must be answered.

First, was appellant's failure to appeal a bar to her filing of a motion to vacate? No. The remedies of appeal and vacation are 'cumulative' or, more precisely, 'alternative'; a party need not prosecute an appeal as a condition precedent to moving for a vacation of a judgment. Kesting v. East Side Bank Co. (1905), 14 Ohio Cir.Ct.R., N.S., 529, 530, affirmed (1907), 76 Ohio St. 591, 81 N.E. 1188; Buckeye State Bldg. & Loan Co. v. Ryan (1926), 24 Ohio App. 481, 485, 157 N.E. 811. On the contrary, as Kesting indicates, the prosecution of an appeal may be a fatal barrier to a party seeking a vacation. See 49 C.J.S. Judgments § 284. To interpose an 'exhaustion of remedies' requirement here would withhold from a large class of litigants a significant remedy founded on a paramount concern for substantial justice.

Second, does appellant by her motion to vacate seek a statutory (Section 2325.01, Revised Code) or a...