Wolfe v. Wolfe

• Decision Date: 23 June 1976
• Docket Number: No. 75-26,75-26
• Citation: 46 Ohio St.2d 399,75 O.O.2d 474,350 N.E.2d 413
• Parties: , 75 O.O.2d 474 WOLFE, Appellee, v. WOLFE, Appellant.
• Court: Ohio Supreme Court

Page 399

46 Ohio St.2d 399

350 N.E.2d 413, 75 O.O.2d 474

WOLFE, Appellee, v. WOLFE, Appellant.

No. 75-26.

Supreme Court of Ohio.

June 23, 1976.

Syllabus by the Court

1. An alimony award which constitutes a division of the marital assets and liabilities is not subject to modification under the continuing jurisdiction of the court.

2. Where, upon granting a divorce, a court awards alimony to a wife, pursuant to an agreement of the parties, to be paid until the condition subsequent of remarriage or death of the wife, and such award is for her sustenance and support and independent of any award arising by adjustment of the property rights of the parties, reservation of jurisdiction to modify the award will be implied in the decree.

3. Post-divorce unchastity upon the part of the former wife is not grounds for automatically terminating the alimony award but may be considered in a subsequent modification proceeding insofar as it is relevant to the issues of continued need for such alimony and the amount.

4. A separation agreement of the parties loses its nature as a contract the moment it is adopted by the court and incorporated into a decree of divorce. (Law v. Law, 64 Ohio St. 369, 60 N.E. 560; Newman v. Newman, 161 Ohio St. 247, 118 N.E.2d 649 and Mozden v. Mozden, 162 Ohio St. 169, 122 N.E.2d 295, modified.)

Mr. John Walton Wolfe, appellant herein, and Mrs. Jo Ann Wallace Wolfe, appellee herein, were married on October 12, 1949.

On November 14, 1967, they enered into a separation agreement which, in pertinent part, provides:

Item 9-'In satisfaction of (Mr.) Wolfe's obligation to support and maintain Mrs. Wolfe, (Mr.) Wolfe shall pay to Mrs. Wolfe for her support and maintenance * * * $35,000 * * * per year * * *. The liability of (Mr.) Wolfe for the payment set forth in this paragraph shall cease upon the happening of whichever of the following events shall occur first: (a) the remarriage of the wife; (b) the death of the wife. This obligation shall be binding upon and be a charge upon the estate of Wolfe and upon his executors, administrators and legal representatives in the event that (Mr.) Wolfe shall predecease Mrs. Wolfe. * * *

Item 10-'As a division of property and in further satisfaction of (Mr.) Wolfe's obligation to support and maintain Mrs. Wolfe and in addition to the monthly alimony payments required to be paid by (Mr.) Wolfe, (Mr.) Wolfe shall pay to Mrs. Wolfe the sum of * * * $350,000 * * *.

'* * * The obligation of (Mr.) Wolfe for these payments shall survive his death and shall be binding upon his estate. * * *'

A decree of divorce, which incorporated that agreement by reference, was awarded to appellee on January 2, 1968, and she subsequently became a resident of Scottsdale, Arizona.

The $350,000 was subsequently paid in accordance with the time limitation detailed in the agreement. Monthly payments acquired under the $35,000 support award were made by appellant each month after the divorce until December, 1973.

On December 18, 1973, appellant moved that he be relieved of making further 'alimony' payments to appellee and that appellee be ordered 'to refund all alimony payments * * * since the change in * * * (her) marital status.'

As pertinent here, the evidence, in substance, disclosed that appellee had developed an association with on Bruce Erickson, whom she had met in 1970 after she had moved to Arizona. She testified that Mr. Erickson lived in her home in Arizona for various periods during the years 1971 through 1973, during part of which time he was still married; that he used appellee's address as his own; and that she and he traveled together on a number of occasions and registered into hotels as man and wife. She admitted intimacy with him on a number of occasions. Further, the evidence tended to establish that he made no contributions to the living costs in the home while residing there, and that she had bought him clothing, paid their travel expenses and made money loans to him.

The trial court granted the motion, and, on April 8, 1974, entered an order relieving appellant of 'all alimony payments to plaintiff' and made the order effective as of December 18, 1973. The order was entered pursuant to a written decision of the court, essentially finding that, while there was a holding out of appellant that she was married, no common law marriage existed between appellee and Mr. Erickson. Further, that 'she is, in fact, attempting to enjoy all of the benefits of a marriage by cohabiting with another man and yet not entering into an actual marriage in order to avoid the loss of alimony.'

Upon appeal, the Court of Appeals reversed the judgment and remanded the cause, stating that 'we find no reservation of jurisdiction in the trial court.'

We allowed appellant's motion to certify the record.

Addison & Smith, Richard C. Addison, Columbus, and L. Dennis Marlowe, Tempe, Ariz., for appellee.

George T. Gareff and Michael J. Norris, Columbus, for appellant.

WILLIAM B. BROWN, Justice.

The basic issue presented-whether the Court of Common Pleas has power to modify the terms of a decree of divorce previously issued by it, which relate to an allowance of 'alimony'-is a problem fraught with such infelicities that, in the opinion of a majority of this court, it requires us to reexamine the basis and method upon which alimony is awarded in this state.

I.

Marriage and divorce have existed in some form since the earliest phases of civilization.

Althouth divorce was apparently unknown in the Homeric age, ¹ later, under the Athenian law (Circa 212 A.D.), ² Greek husbands and wives could go their separate ways after the mere filing of notice with a magistrate; the law being in the hands of the parties-to marry, divorce and remarry at will. ³

In Rome, where marriage was based in morality and religion, no divorces were had for the city's first 500 years. ⁴ Later, however, after the second Carthaginian War, free marriage, or matrimonium sine conventione in manum mariti, became the accepted practice. ⁵

Although the Hebrews exalted marriage: that husband and wife should cleave together and be one flesh (Genesis 2:24, King James Version), the Mosaic Code permitted the husband to dismiss the wife for cause (Deuteronomy 24:1). Later, sanctioned by the Talmud, a wife could demand a separation. (Exodus 21:7-11.) ⁶ Beginning circa the Christian era, two schools arose at Jerusalem: the school of Shammai taught that only adultery could justify divorce; the school of Hillel authorized divorce for any cause. Under the latter, by the written law, in only two cases was a husband deprived of such power (Deuteronomy 22:13-19, 28, 29): the case of the ravisher and that of the husband who falsely accuses the wife of antenuptial incontinence in the latter instance he was not to put her away all his days. By the Mishnah, or oral law, other restrictions were imposed to make the exercise less arbitrary. ⁷

Christian thought, as expressed in Matthew 5:31-32, 19:3-12, Mark 10:2-12, Luke 16:18, Romans 7:2, and 1 Corinthians 7:10-11, strongly encouraged a perpetual union, to be ended only by death or adultery. Thus, the basic tenet of Judeo-Christian marriage was that it be a perpetual union unto death (Genesis 2:24, Matthew 19:4-6, Mark 10:6-9, Luke 16:18, and Ephesians 5:31-33). However, the Mosaic Code had provided a basis for divorce, perhaps out of recognition that people cannot be forced to live together. ⁸

In modern times, divorce has been controlled by the state or the dominant church. Divorces were not granted in English common law, but a divorce a mensa et thoro (a divorce from bed and board, or a legal separation) was allowed by the Ecclesiastical courts (which followed Canon law), and a divorce a vinculo matrimonii (a divorce from the banns of matrimony or an absolute divorce) was allowed only by special act of Parliament. ⁹ No other English authority possessed divorce jurisdiction until 81 years after our Declaration of Independence. ¹⁰

In this state, divorces were granted by special acts of the General Assembly (see, e. g., the divorce of Hannah from Isaac Willis in 2 Ohio Laws 67), and, later, pursuant to general statutes.

In the development of systems of divorce, 'alimony' ¹¹ emerged, its origins shrouded in the mists of history and metaphor.

The Ecclesiastical courts granted alimony from the husband to the wife strictly upon the basis of the husband's common-law duty to support the wife. Accordingly, if the divorce (a mensa et thoro) was granted for reason of the wife's misconduct, no alimony was awarded because a husband was obligated to support his wife only so long as they cohabited or were separated by reason of his misconduct. ¹² On the other hand, since only very serious misconduct on the part of the husband warranted a divorce, ¹³ the courts generally awarded 'alimony' to the wife in excess of bare sustenance. ¹⁴ Those awards were made, however, in the context of a marriage-the banns of matrimony intact.

In the absolute divorces granted by Parliament, it became a practice that divorces would not be granted unless pecuniary provision, called alimony, be made for the wife. That practice is criticized by an early writer:

'The Parliamentary practice of requiring the injured husband to make a provision for his delinquent wife had not much to commend it, either morally or legally. Morally it seems monstrous to compel a man to support through life the woman who has dishonored him; legally, she has no claim whatever, because after she has committed adultery, the husband may turn her out of doors. * * * What, therefore, can appear more strange than to call upon the husband to secure her maintenance? Yet this was constantly done in Parliament, sometimes in the upper but often in the lower assembly.' MacQueen, Divorce and Matrimonial Jurisdiction (1858) 55.

Whatever the legislative divorce practice in England, however, it appears that insofar as the courts of Ohio adopted ¹⁵ ...