De Witt v. De Witt

• Decision Date: 16 December 1902
• Citation: 66 N.E. 136,67 Ohio St. 340
• Parties: DE WITT v. DE WITT.
• Court: Ohio Supreme Court

66 N.E. 136

67 Ohio St. 340

DE WITT v. DE WITT.

Supreme Court of Ohio.

December 16, 1902

Error to circuit court, Seneca county.

The action in the common pleas was by plaintiff in error, Ella S De Witt, against C. Douglass De Witt, for divorce and alimony, and the custody of their minor child. In her petition, plaintiff alleged divers grounds for divorce. She further alleged that she and the defendant were the owners as tenants in common, of the farm of 80 acres upon which they lived, subject to a mortgage of $1,500; that the farm was well stocked with cattle, sheep, hogs, etc., and with farming implements, tools, and other personal property, all accoumulated by the joint labor of plaintiff and defendant and that defendant had recently disposed of a large amount of personal property, and had the cash on hand therefor. Defendant, by his answer, admitted the marriage, the birth of the child, and that there is a mortgage of $1,500 on the farm, and that he is the owner of the personal property described, and denied all other allegations. On trial, the plaintiff was granted a divorce on the ground that the defendant had been guilty of gross neglect of duty; also custody of the child. A decree for alimony was thereupon entered, from which both parties gave notice of appeal, but appeal was perfected only by the plaintiff. An amended petition was filed in the circuit court, in which, among other things, it was averred that, in addition to the personal property and real estate described in the original petition, the defendant was the owner at the commencement of the suit of the undivided half of a tract of 90.55 acres (describing the same), also of a 60-acre tract, both in said county, and both subject to a life estate in favor of one Samuel H. De Witt. No answer was filed to this pleading, nor was the original answer refiled, nor is it in any way referred to in the record of the proceedings after this date. On trial in the circuit court, it was adjudged ‘ that the defendant pay to the said plaintiff, as her reasonable alimony, the sum of $2,600, payable in sixty days from the date of this decree, and that the same be, and hereby is made a charge and lien upon the lands of said defendant, but subject to the condition that the said plaintiff quitclaim to the said defendant all her interest in and title to the eighty acres of land, and the defendant's other land described in the pleadings; that she surrender to the defendant the $1,250 note that she holds against the defendant; and that she pay and surrender the $400 note, upon which there is yet due the sum of $275, given by defendant and plaintiff to plaintiff's mother.’ The plaintiff refused to abide by this adjudication, and brings this proceeding to reverse the judgment of the circuit court so rendered. Reversed.

Syllabus by the Court

1. Under section 5699, Rev. St., as the same stood prior to the amendment of May 19, 1894 (91 Ohio Laws, p. 348), it is error for the court, having granted the wife a divorce for the aggression of the husband, and awarded her alimony payable in money, to attach to the payment of such alimony a condition that she quitclaim to the husband her interest in her own lands, and of dower in his lands, and surrender to him promissory notes which she holds against him.

2. The amendment of May 19, 1894, can have no application to such suit unless it is found by the court affirmatively that the condition therein expressed actually exists, viz., that the husband has but little or no property or means, and the wife is the owner of lands or personal estate, or both.

Brewer & Brewer, for plaintiff in error.

Seney & Sayler, for defendant in error.

SPEAR, J. (after stating the facts as above).

The ground of complaint on the part of the plaintiff is that the conditions imposed upon her are unjust and oppressive, and that the court was without authority to require her acceptance of them as a condition to her recovery of alimony. On the other hand, it is contended that the court, having the proper parties before it, and having the general power to allow alimony, had also full power to adjust all their property rights.

It is apparent that the circuit court proceeded upon the assumption that it possessed full equity powers, and might properly take cognizance of all the property, and interests in property, possessed by each of the parties, and make as full and final a decree and order as though the cause were strictly one in equity. And there is some support for this assumption to be found in one of the recent text-books, and in a paragraph of an opinion in this court. We refer to the comprehensive and able treatise of Mr. Nelson, of the Nebraska bar, on the Law of Divorce and Adjustment of Property Rights. At page 858 of the second volume, the author observes: ‘ We have seen that the decree for a permanent allowance is a final adjudication of all property rights between the parties. After such decree, neither party has any claim upon the other of any kind. The parties have, in the proper tribunal, and at an appropriate time, had an opportunity to litigate their property rights, and the decree is presumed to be an adjudication of all matters which might have been tried in such action. It follows that, in ascertaining the proper amount for the wife, all her claims against the husband must be considered.’ Expression of the same idea is found in other parts of the work. The decision in this court referred to is that of Petersine v. Thomas, 28 Ohio St. 596, cited by counsel; opinion by Ashburn, J. He remarks: ‘ Under our statute, a divorce contemplates a final separation of the parties. Their paths in life henceforth diverge, and, in legal contemplation, they are to each other as strangers. When not otherwise provided, we think the statute contemplates that at the time of decreeing the divorce the court will adjust all the pecuniary rights of the parties in relation to each other springing out of the marital relation about to be forever annulled. To this end, the court is given full discretionary authority to make such order concerning the division of the property and support of the children as to the court shall appear, under all the facts and circumstances, just, equitable, and reasonable.’ Exactly what meaning should be attached to the phrase ‘ all the pecuniary rights of the parties in relation to each other, springing out of the marital relation,’ is not clear. But assuming that it is meant to include all rights of property of every kind acquired by either or both before and during coverture, it is proper to say that the case before the court did not involve so wide a scope of inquiry. The question presented, and the judgment upon it, is clearly set out in the second paragraph of the syllabus as follows:

‘ After a suit for divorce and alimony has been finally determined by the court granting the divorce, and in lieu of alimony confirming an executed agreement as to the amount paid as alimony, a new action for additional alimony cannot be maintained when the reasons for such additional allowance existed, or might have been provided for in such final judgment, and when it is not sought to impeach such final judgment.’

It is apparent that the court was dealing with the effect of an executed agreement of the parties, and that its decision did not call for an expression upon the phase of the general subject quoted from the opinion of the learned judge.

Attention is also called to the recent case of Julier v. Julier, 62 Ohio St. 90, 56 N.E. 661,78 Am.St.Rep. 697. But that case, also, deals with the effect of an agreement of the parties which the court finds to be just and reasonable, and aids but little, if any, in determining the question here presented; and we are not cognizant of any reported case in Ohio which, in the decision upon the point at issue, gives authoritative support to the circuit court's assumption.

We gather from a somewhat extended examination of authorities that, in so far as we derive any common-law rules respecting divorce and alimony from the mother country, we inherited those administered in the ecclesiastical courts, for, outside of parliament, no other tribunal had or assumed cognizance of such controversies. Such power did not, in England, belong to a court of equity. The ecclesiastical court was not, and never had been, a court of equity. It was a canonical court, and never deviated from the canon law. Macq. Div. 55, note; Shelf. Mar. & Div. Law Library, 277, 598, 599. See, also, Adams, Eq. 47. Mr. Henry Folsom Page, in his valuable work on Divorce (297), states that: ‘ It is now settled in England that courts of equity have no general authority to decree alimony to the wife.’ Mr. Browning, in his work on Marriage and Divorce, speaking of the jurisdiction of the courts of England at the present time, at page 1, observes: ‘ The court for divorce and matrimonial causes owes its jurisdiction-in part original, and in part derived from ecclesiastical courts-to the act of parliament by which it was created, and the several amending acts by which that jurisdiction has been in various ways altered and amplified.’ The state of the law in this country on that phase of the question is probably more in doubt. Mr. Page expresses the opinion ‘ that, in the United States, courts of chancery exercise jurisdiction to decree the allowance of alimony in cases of cruel usage or desertion, and this jurisdiction is placed on the ground that the wife has no remedy at law.’ Decisions of the courts of South Carolina, North Carolina, Virginia, Kentucky, and Maryland support the view above stated, but the author cites no Ohio case sustaining the text. Story, Eq. Jur. (2d Ed.) § 1423a, says the doctrine that courts of equity should have power to...