Zimmie v. Zimmie
| Decision Date | 13 June 1984 |
| Docket Number | No. 83-580,83-580 |
| Citation | 11 Ohio St.3d 94,11 OBR 396,464 N.E.2d 142 |
| Parties | , 53 A.L.R.4th 75, 11 O.B.R. 396 ZIMMIE, Appellant and Cross-Appellee, v. ZIMMIE, Appellee and Cross-Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Permanent sustenance alimony is in the nature of support, and the attachment of conditions to its continuance is reasonable considering that the need for such support may change, thus altering the payor's obligation. Such conditions are not acceptable, however, as limitations on the division of marital property.
The parties to this action, Kathryn Zimmie, plaintiff-appellant and cross-appellee, and William E. Zimmie, defendant-appellee and cross-appellant, were married in 1963. Before their marriage, defendant had formed a closely held business, Zimmite Corporation, for purposes of ownership and management of his numerous patents. In 1977 plaintiff filed a complaint for divorce alleging extreme cruelty and gross neglect of duty. Defendant counterclaimed for divorce on the same grounds, alleging further that plaintiff's claims for alimony and division of property were barred by an antenuptial agreement. On November 5, 1980, defendant filed a notice of dismissal of his counterclaim. Shortly thereafter, plaintiff filed a notice of dismissal of her complaint; she then filed a new, essentially identical complaint. The trial court subsequently granted a motion to reinstate the defendant's counterclaim. Defendant was also granted leave to amend his counterclaim to allege that the parties were entitled to divorce under R.C. 3105.01(K) due to their two-year separation. Defendant then moved for partial summary judgment for divorce on this ground. The trial court granted defendant's motion. However, the court found the antenuptial agreement invalid as a matter of law on the basis that there had not been a full disclosure of assets by the defendant and there was insufficient evidence to show that the wife had knowledge as to the amount of such assets. Thus, the court concluded that the agreement had not been voluntarily entered into by the wife. A trial ensued on the issues of alimony, division of property and child support.
In its findings of fact and conclusions of law, the trial court classified the defendant's interest in Zimmite Corporation as "nonmarital" property, belonging solely to defendant. The husband's separate real estate, partnership, corporate and investment interests were also deemed not subject to division. The court, however, awarded the plaintiff a sum of $1,425,000 payable in installments over a period of nineteen years, or until her death, remarriage or cohabitation. This award was specifically designated by the court as a combination of sustenance alimony and division of property.
From this judgment, both parties appealed. The court of appeals affirmed.
The cause is now before this court pursuant to the allowance of a motion and cross-motion to certify the record.
Schwarzwald, Robiner, Wolf & Rock Co., L.P.A., Marshall J. Wolf, Ilana Horowitz, Cleveland, Schiller, DuCanto & Fleck and Joseph DuCanto, Chicago, Ill., for appellant and cross-appellee.
Gold, Rotatori, Schwartz & Gibbons Co., L.P.A., Gerald S. Gold, Niki Z. Schwartz and Susan L. Gragel, Cleveland, for appellee and cross-appellant.
Six propositions of law have been presented by this appeal and cross-appeal.
The first issue raised in this cause is whether the trial court erred in its reinstatement of defendant's counterclaim after its voluntary dismissal.
It is axiomatic that such dismissal deprives the trial court of jurisdiction over the matter dismissed. After its voluntary dismissal, an action is treated as if it had never been commenced. Goldstein v. Klivans, Inc. (App.1931), 10 Ohio Law Abs. 133. Jurisdiction cannot be reclaimed by the court. However as noted by the court of appeals below, the plaintiff failed to interpose any objection to the trial court's reinstatement and consolidation order. Plaintiff thus waived her right to complain of this error.
Further, Civ.R. 15(B) in part provides:
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. * * * "
The rule further provides that the pleadings may be amended upon motion to reflect the new matter introduced. Thus, even if plaintiff had objected at trial, the trial court could have permitted the issues to be litigated and the pleadings amended to conform with the proof. Therefore, such error was not prejudicial to the plaintiff.
Plaintiff-appellant assigns error to the trial court's granting of the defendant's motion for summary judgment, contending that summary judgment is inappropriate in a divorce proceeding because it circumvents Ohio law requiring a hearing and corroborating testimony.
Summary judgment is not prohibited in divorce proceedings. In fact, Civ.R. 75(A) provides that the Rules of Civil Procedure "shall apply in actions for divorce * * *." Appellant asserts that summary judgment precluded the admission of evidence on defendant's extramarital affairs, in support of her grounds for divorce. We fail to see the force of this argument. The summary judgment granting the divorce stemmed from evidence of the separation of the parties for two years. Thus, evidence on the defendant's marital misconduct was unnecessary. At the time of trial, R.C. 3105.01(K) authorized a trial court to grant a divorce "[o]n the application of either party, when husband and wife have, without interruption for two years, lived separate and apart without cohabitation * * *." Defendant's evidence was corroborated by plaintiff's testimony on this point.
The trial court's granting of the divorce by summary judgment was not error, and is hereby affirmed.
Plaintiff-appellant contends that the trial court erred to her prejudice by excluding testimony of defendant's marital misconduct, which is relevant to the determination of alimony pursuant to R.C. 3105.18. We disagree.
Although R.C. 3105.18, which sets forth factors to be considered in alimony awards, does not list marital misconduct, this court has held that it may be a relevant factor in the court's determination. Esteb v. Esteb (1962), 173 Ohio St. 259, 181 N.E.2d 462 . Total exclusion of such evidence may be improper in many situations, but such was not the case here. The record discloses that the trial court did take notice of defendant's marital misconduct. Evidence was admitted showing the plaintiff's emotional problems stemming from the defendant's extramarital affairs. Exclusion of lengthy testimony on this subject does not establish the trial court's refusal to consider it as a relevant factor in determining its award of alimony.
The appellant has failed to show that the trial court abused its discretion in excluding this particular testimony. Absent such showing, the reviewing court will not reverse the finding of the trier of fact. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
The plaintiff-appellant urges that the trial court erred in excluding from consideration property acquired prior to the marriage and the post-marital enhancement thereof, and that the result of such exclusion is inequitable. Most notable was the exclusion of a $900,000 patent which the trial court ruled belonged solely to defendant.
This court has held that property division need not be equal to be equitable. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, 421 N.E.2d 1293 . Further, the trial court "must have discretion to do what is equitable upon the facts and circumstances of each case." Cherry, supra, at 355, 421 N.E.2d 1293. A reviewing court will not interfere unless the complaining party affirmatively shows an abuse of discretion by the trial court.
The record discloses that the trial court had before it evidence on the value of the property excluded and the plaintiff's contribution, or lack thereof, to its acquisition and enhancement. The plaintiff-appellant has failed to show that the exclusion from consideration by the trial court of property acquired before marriage and its post-marital enhancement was an abuse of its discretion to arrive at an equitable division of marital property. The trial court's judgment cannot be disturbed on appeal absent such...
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