Verplatse v. Verplatse

• Decision Date: 25 May 1984
• Docket Number: No. 5-82-41,5-82-41
• Citation: 477 N.E.2d 648,17 OBR 161,17 Ohio App.3d 99
• Parties: , 17 O.B.R. 161 VERPLATSE, Appellee, v. VERPLATSE, Appellant. *
• Court: Ohio Court of Appeals

Page 99

17 Ohio App.3d 99

477 N.E.2d 648, 17 O.B.R. 161

VERPLATSE, Appellee, v. VERPLATSE, Appellant. ^*

No. 5-82-41.

Court of Appeals of Ohio, Third District, Hancock County.

May 25, 1984.

Syllabus by the Court

1. An appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. (State v. Morris, 42 Ohio St.2d 307, 329 N.E.2d 85 , followed.)

2. The term "extreme cruelty" as used in R.C. 3105.01 is not limited in scope to acts of physical violence or the reasonable apprehension thereof, but is sufficiently broad to encompass acts and conduct the effect of which is calculated to permanently destroy the peace of mind and happiness of one of the parties to the marriage and thereby render the marital relationship intolerable.

3. The determination of what facts constitute extreme cruelty in a given case must be left to the broad, but sound, discretion of the trial court and whether sufficient evidence has been presented to establish extreme cruelty will depend upon all the circumstances of the particular case.

4. The only duty upon the father in a divorce action in the absence of an agreement on his part to continue support of his children is to support the children until eighteen years of age or so long as the child continuously attends on a full-time basis any recognized and accredited high school.

5. There is no presumption that marital property be divided equally upon divorce; rather, a potentially equal division should be the starting point of the trial court's analysis before it considers the factors listed in R.C. 3105.18 and all other relevant factors. (Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 , followed.)

6. In reviewing a judgment of the trial court awarding and distributing property in a divorce action, the reviewing court is limited to determining whether, considering the totality of the circumstances, the trial court abused its discretion.

Guernsey & Guernsey and J.D. Guernsey, Fostoria, for appellee.

Jeffrey I. Goldstein and Lorin J. Zaner, Toledo, for appellant.

MILLER, Judge.

This is an appeal by defendant, Albert A. Verplatse, from a judgment of the Court of Common Pleas of Hancock County decreeing divorce, awarding custody and support and ordering a distribution of property on plaintiff's amended complaint.

The parties were married in 1962 and have three children.

At the time of their marriage defendant owned residence property for which he had paid $27,500 and had some $21,800 in a savings account while plaintiff, Dorothy M. Verplatse, had savings of approximately $3,000.

The business in which the parties became engaged after marriage was quite successful and there were very substantial assets of the parties at the time of the divorce action.

Although plaintiff alleged in her complaint that defendant was guilty of gross neglect of duty and extreme cruelty, the trial court found defendant only to be guilty of extreme cruelty, basing the divorce thereon.

Defendant sets forth five assignments of error in his appeal from the trial court's judgment.

"Assignment of Error No. I. The judgment of the court of common pleas granting appellee a divorce on the grounds of extreme cruelty is unsupported by the evidence and constituted an abuse of discretion."

Defendant's argument is first directed to the fact that plaintiff's amended complaint related back to the date of the original complaint and, thus, the trial court should not consider evidence of any acts occurring thereafter as corroborative of plaintiff's evidence.

This issue was not raised at the trial of the case nor in defendant's motion for new trial, but is first asserted in this appeal.

Paragraph one of the syllabus of State v. Morris (1975), 42 Ohio St.2d 307, 329 N.E.2d 85 , states that:

"An appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. (Paragraph three of the syllabus in State v. Childs [1968], 14 Ohio St.2d 56, 236 N.E.2d 545 , approved and followed.)"

We conclude that appellant's argument as to this issue is not well-taken.

The term "extreme cruelty" as used in R.C. 3105.01 is not limited in scope to acts of physical violence or the reasonable apprehension thereof, but is sufficiently broad to encompass acts and conduct the effect of which is calculated to permanently destroy the peace of mind and happiness of one of the parties to the marriage and thereby render the marital relationship intolerable. Buess v. Buess (1950), 89 Ohio App. 37, 100 N.E.2d 646 .

The determination of what facts constitute extreme cruelty in a given case must be left to the broad, but sound, discretion of the trial court and whether sufficient evidence has been presented to establish extreme cruelty will depend upon all the circumstances of the particular case. 48 Ohio Jurisprudence 3d (1983) 272, Family Law, Section 1126.

There was evidence before the trial court which, if believed, would indicate that defendant had used abusive and degrading language to and about plaintiff, had urinated on her and otherwise acted so as to render the marital relationship intolerable.

We do not find that the trial court abused its discretion in finding defendant guilty of extreme cruelty.

The first assignment of error is not well-taken.

"Assignment of Error No. II. The lower court lacked jurisdiction to order appellant to pay for the college education of his minor children whether or not they are eighteen."

The judgment entry of the trial court provided in part that:

"It is further ORDERED, ADJUDGED and DECREED by the Court that the defendant, Albert A. Verplatse, shall pay the board, room and tuition of any of said children, regardless of whether or not the child has attained the age of eighteen (18) years, should such child continue his or her education in any kind of institution of higher learning beyond the twelfth (12th) grade of high school. However, the board, room and tuition so to be paid by the defendant shall not exceed the amount for those items customarily charged by Bowling Green State University at the time each such child is enrolled and attending such institution of higher learning."

The obligation of a father to support his minor children after his divorce is granted is an obligation cast upon him by law and not by the decree of divorce. 47 Ohio Jurisprudence 3d (1983) 82, Family Law, Section 619.

Paragraph two of the syllabus of Miller v. Miller (1951), 154 Ohio St. 530, 97 N.E.2d 213 , states:

"In a divorce action, where a child of the parties attains his majority, authority of the court over such child comes to an end, and the court is without power to provide for the support of or aid to such child or to continue a provision for his support. (Thiessen v. Moore [1922], 105 Ohio St., 401 , approved and followed.)"

In Sylvester v. Sylvester (1969), 21 Ohio App.2d 58, 254 N.E.2d 699 , the court modified an order of the trial court that the father pay a weekly amount for support of his minor children until each child "is emancipated by age of twenty-one (21) or until graduated from college, whichever occurs later," by striking therefrom the above-emphasized language.

R.C. 3109.01 establishes the age of majority as eighteen years of age.

R.C. 3103.03 provides as pertinent that:

"The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able.

"Notwithstanding section 3109.01 of the Revised Code, the parental duty of support to children shall continue so long as the child continuously attends on a full-time basis any recognized and accredited high school, even when such child has attained the age of majority. * * * "

Thus the only duty upon the father in a divorce action in the absence of an agreement on his part to continue support of his children is to support the children until eighteen years of age or so long as the child continuously attends on a full-time basis any recognized and accredited high school.

We find defendant's second assignment of error to be well-taken.

"Assignment of Error No. III. The property division set forth by the court requiring appellant to pay appellee $300,000.00 constituted an abuse of discretion and failed to follow the mandate of Wolfe v. Wolfe, Cherry v. Cherry and Ohio Revised Code Section 3105.18."

R.C. 3105.18(A) provides that in a divorce action the court of common pleas may allow alimony as it deems reasonable to either party either in real or personal property or by decreeing a sum of money payable either in gross or by installments as the court deems equitable.

R.C. 3105.18(B) provides that in determining the nature and amount of alimony the court shall consider all relevant factors including eleven factors specifically set forth...