Whitaker v. Whitaker , 52 Ohio App. 223 ( 1936 )

The Court of Common Pleas of Cuyahoga county obtained jurisdiction over the parties hereto by the filing of a petition for alimony only by plaintiff and service of summons upon defendant. This jurisdiction is a continuing jurisdiction until the final determination of the matters in issue.

The trial of the case resulted in an alimony decree for plaintiff, payable in monthly installments. Since this was not a divorce case, a decree for installment payments was always subject to modification during the marital relation. Modification may be made by the court upon motion of either party with service of notice upon the other party. It may also be made by petition with proper service of summons. In this case plaintiff filed a motion to have the decree modified by reducing to judgment all unpaid installments of alimony with interest. Proper notice of said motion was served on defendant and he had ample opportunity to appear and contest the granting of said motion. He did appear through his counsel and objected to the jurisdiction of the court to hear said motion. The court, in my opinion, had full jurisdiction of the parties to pass upon this motion and to reduce to judgment the unpaid installments with interest.

The trial court went too far, however, in granting to plaintiff an allowance for the support of the child for the period subsequent to the divorce granted to her in Oregon. The plaintiff submitted to the Oregon court the question of the care and custody of the child and that court having taken jurisdiction of that subject, and having awarded to the plaintiff the care and custody of the child, she is concluded by that award and cannot thereafter ask the Cuyahoga county court for further relief in respect to support for the child.

In her action for divorce in the Oregon court plaintiff did not submit to said court the issue of determining as between them their property rights. She had a right to submit such question to that court. I agree with Lieghley, P.J., that the husband had an absolute right to have all claims between husband and wife presented and adjudicated in the divorce decree by the Oregon court. Each of these parties had such a right. He entered his appearance in said case, but did not ask the court to make any provision for division of property, or for alimony. He was not denied any right. There is no merit to his contention that the property rights of these parties were adjudicated in that decree when neither party presented such matter to the court. In Ohio, husband and wife may contract with each other as to property rights. In a subsequent divorce action between them no contract rights as to property theretofore existing between them are cancelled unless the court takes jurisdiction of their property rights and seeks to adjudicate them.

In the divorce case in Oregon no request was made by either party to have the court adjudicate their property rights. The court did not assume jurisdiction of that subject and did not even attempt to make any adjudication thereof. Therefore, the property rights of the parties existed the same after the divorce in the Oregon case as they existed before. Plaintiff had at all times since the decree for alimony by the Cuyahoga county court a property right in said decree and award for alimony which was unaffected by the Oregon divorce, and this right would be just the same as though she held a promissory note executed by him for proper consideration prior to the divorce. It is my opinion that his obligation to pay said promissory note would not have been affected by the Oregon divorce if that court had taken no jurisdiction of their property rights.

The Gilbert case, 90 Ohio St. 417, 108 N.E. 1121, as quoted by Lieghley, P.J., seems to me to be decisive of this question just discussed. In that case the wife had obtained a decree in Cuyahoga county for alimony only, payable in monthly installments. Some years later, in an action in the nature of a creditor's bill, she sought to subject to the payment of said unpaid alimony installments certain real estate in Cuyahoga county held by Sam W. Mather, as trustee for her husband Gilbert. He answered and cross-petitioned praying that the decree for alimony awarded theretofore be vacated and he be discharged from any obligation thereunder, and as reason therefor he claimed that in the South Dakota divorce case she submitted to the jurisdiction of said court all the orders and doings of the court of Cuyahoga county as well as all other claims she had against him. He also alleged that in the South Dakota action an alimony decree was awarded to her which decree stood unreversed. The Supreme Court held this answer and cross-petition was good as against demurrer. Gilbert v. Gilbert, 83 Ohio St. 265,94 N.E. 421. Then Mrs. Gilbert filed a reply in which she controverted the allegations of the answer and cross-petition and denied that she had submitted to the South Dakota Court "the orders and doings of the Cuyahoga county court as well as all other claims she had against the defendant." She also alleged in her reply that on his motion in the South Dakota court the decree for alimony awarded to her by the South Dakota court was amended by striking therefrom the award to her of alimony. A motion was made by Mr. Gilbert for judgment on the pleadings. The Supreme Court in the Gilbert case, 90 Ohio St. 417, 108 N.E. 1121, held that:

"The reply presented an issue of fact which the plaintiff in error [Mrs. Gilbert] is entitled to have tried in the court below according to law; that if on the trial such issue shall be determined in favor of the plaintiff [Mrs. Gilbert] she will be entitled to recover in this action the amount with interest of the installments under the decree rendered by the Court of Common Pleas of Cuyahoga County which were due and unpaid prior to the date of the decree for divorce in South Dakota in the proceeding in which the plaintiff herein was a party, and in which proceeding she entered her appearance and filed her answer * * *."

From this decision, it seems to me that the Supreme Court holds that payment of unpaid installments in a case for alimony only may be enforced notwithstanding that at a later time a divorce is granted to one of the parties by a foreign court which had jurisdiction over both parties and in which case neither the "orders and doings" of the court granting the alimony nor the property rights of the parties were submitted.

In the Weidman case, 57 Ohio St. 101, 48 N.E. 506, it is decided that where a wife obtains a divorce, the husband being personally served with process, she cannot thereafter maintain a separate action against him for alimony.

Alimony is an award of the property of one spouse to the other spouse.

This Weidman case is not authority for a claim that if a wife fails to pray for alimony in a divorce case she thereby waives and cancels all her property claims theretofore existing against her husband. She does waive any right to have any of her husband's property thereafter awarded to her as alimony but she does not surrender thereby all claims she may have had against her husband, either on contract or judicial decree. The holding in the Weidman case cannot be extended to declare that because a wife may be held to waive alimony by not praying for it she also is held to have surrendered any claim she might theretofore have had against her husband.

It therefore appears to me that the finding of the trial court should be modified by omitting from the decree that portion that provides for an award to the plaintiff, Mrs. Whitaker, for the support of the child subsequent to the Oregon divorce, and as so modified the decree should be affirmed.