Winnard v. Winnard

• Decision Date: 08 November 1939
• Citation: 23 N.E.2d 977,62 Ohio App. 351
• Parties: WINNARD v. WINNARD.
• Court: Ohio Court of Appeals

23 N.E.2d 977

62 Ohio App. 351

WINNARD v. WINNARD.

Court of Appeals of Ohio, Second District, Franklin.

November 8, 1939

Syllabus by the Court.

1. An action for divorce by a husband against a wife upon the ground that the wife was employed in a gainful occupation aside from her household duties and thereby failed in her duty to make a home for the husband, in which action the evidence shows that, by such employment, the wife helped maintain the financial stability of the parties, that the employment of the husband required him to travel and he was inconvenienced by his wife working only over small periods of time, that the wife did not remain employed against his express wish, and that she, as a result of working, had become irritable and petulant, presents a question of incompatibility, which is not a ground of divorce in Ohio.

2. In a divorce action the question of the residence of the plaintiff is essentially one of his intent and will be so accepted unless the facts and circumstances are such that the avowed intent cannot be accepted as true.

3. In a divorce action the defense of condonation is an affirmative one which must be specially pleaded.

Schanfarber & Schanfarber and Horace S. Kerr, all of Columbus, for appellant.

R E. Lamm and W. B. McLeskey, both of Columbus, for appellee.

HORNBECK Presiding Judge.

This is an appeal on questions of law from a decree of divorce granted plaintiff from the defendant.

Plaintiff in his petition sets up a state of facts upon which he prays a decree of divorce. The defendant filed an answer and cross-petition for alimony on the ground of gross neglect of duty. It is said in the briefs that plaintiff filed a reply but we do not find it in the transcript of pleadings, docket and journal entries.

The gravamen of plaintiff's charge against the defendant is that although he was able and willing to provide defendant with a suitable home she persisted against his expressed desire to work during all of their married life until the divorce action was instituted; that by reason of the demands of business upon the defendant, worries incident thereto and time expended thereon she became irritable, unpleasant and quarrelsome and failed in her duty to make a home for the plaintiff. This was denied by defendant and it was urged that it was necessary that she work as she did to enable the parties to meet their financial obligations. Upon trial had a decree of divorce was granted to the plaintiff on the ground of gross neglect of duty. A property award was made to the defendant in the sum of $12,000. Certain moneys were ordered set over to the defendant, certain personal property awarded to her and a plan set up whereby the balance of the award which was substantial, should be paid to the defendant out of future earnings of the plaintiff and he was required to take out a life insurance policy in the sum of $5000 to assure the payment of this balance.

The assignments of error, which are numbered eight, raise questions which may be incorporated under four headings, namely:

1. That the court erred in finding that the plaintiff at the time of his institution of his action for divorce was a resident of Franklin county, Ohio.

2. That plaintiff failed to establish any proof which would authorize the granting of a decree of divorce to him upon any ground set forth in the Code.

3. That the plaintiff was not corroborated in elements of his case which were material to the granting of a decree.

4. That the plaintiff by conduct had condoned the cause of action, if any, set up in the petition.

The record in this case is voluminous, consisting of almost 500 pages of testimony together with extended exhibits mostly in the nature of correspondence between the parties. Counsel have briefed the question presented at length and effectively.

It would serve no good purpose to write an extended opinion. We first consider the question of the residence of the plaintiff. Upon the record it is a very close question indeed if plaintiff established his residence as that of Franklin county. Many effective probative circumstances indicate a purpose on his part to remove permanently from Franklin county. The insurance company by which plaintiff was employed had transferred him from Columbus to the home office in Philadelphia. At the time he was a member of the village commission of Upper Arlington and in tendering his resignation he stated it was made 'owing to his removal from the village.' A farewell party was given in his honor which was attended by a large number of coworkers, friends and well-wishers. It was the subject of speeches and remarks that the Winnards were removing from Columbus to Philadelphia. They planned to sell their home. He applied for and was issued a license for his automobile in Philadelphia. Against this formidable array of facts the plaintiff insists that at all times it was his intention to retain his residence in Franklin county. He did not at any time vote in Philadelphia. Occasionally he returned to Columbus, staying on these occasions either at his own home, with his parents, or, in one instance, at a hotel. He had some, although very few, personal effects in a room at the home of his parents and carried a key to this residence.

It is a difficult to phrase language describing one's leaving of his place of abode, which, in itself, is conclusive of a purpose to change residence. Thus, we speak of an individual moving from a certain town to another place, leaving the city, etc., in which situation a change of residence or otherwise would not be inconsistent with such statements. The matter of residence is so essentially one of intent that one is permitted to determine where his residence is and it will be so accepted unless the facts and circumstances are so persuasive as that his avowed purpose cannot be accepted as true. We do not find that the trial judge committed prejudicial error in resolving the disputed facts in favor of the plaintiff's claim as to his residence.

The second and the principal question presented by this record relates to the cause of action and the proof in support thereof.

As briefly as possible we give...