28 Ohio C.C. (n.s.) 225 | Ohio Ct. App. | 1916
This is a proceeding in error from 'a decree of the common pleas court awarding alimony to the defendant in error. The case was tried upon the amended petition and an amendment and supplement to the amended petition of the plaintiff, George W. Albert, and the answer thereto of the defendant, Mary A. Albert. The prayer of the plaintiff was for divorce and alimony. The court found from the pleadings and evidente that certain property described in the journal entry was acquired by the parties during coverture and paid for from the earnings of the plaintiff, and that
Where a husband files a petition for divorce and alimony, and upon trial the court refuses to grant a divorce, can a decree for alimony be awarded to the husband?
This requires an examination of the statutes relating to that subject. '■ The decree is said to be' based upon the provisions of Section 11992, General Code, which reads as follows:
“When it appears to the court that the husband is the owner of little or no property and the wife is the owner of lands or personal estate, or both, the court may adjudge to the husband such share of her real-or personal property, or both, or may decree to him such sum of money out of her estate, payable in gross or by installments, as it deems
This section by its terms seems to be ample authority for the granting of the relief given in this case, but plaintiff in error contends that it is not applicable to a situation such as is disclosed by the record. Attention is called to the fact that the section just cited was a part of Section 5699, Revised Statutes, which section, by the adoption of the General Code, was divided into three sections and numbered 11990, 11991 and 11992. That part of the section of the Revised Statutes now found in Section 11992 was an amendment to Section 5699, Revised Statutes, passed by the general assembly May 19, 1894, 91 Ohio Laws, 348. Prior to this amendment there was no provision for the granting of alimony to a husband when a divorce was granted to the wife upon the aggression of the husband.
Reliance is had upon the case of DeWitt v. DeWitt, 67 Ohio St., 340, and attention is called to the language of the court in the decision of that case, found on page 353, a portion of which we quote:
“The amendment, if taken unqualifiedly, is contradictory to the earlier part of the section, and if the defendant desires to avail himself of its provisions, he should have made a case justifying its application. The purpose of the amendment probably is. to place the erring. husband in a position respecting property akin to that given ■ an erring wife by the succeeding section, but the language is less general and noticeably more guarded.”
The origin of the doctrine of alimony, as stated in 14 Cyc., 743, is based upon the common-law obligation of the husband to support his wife, which is not removed by divorce obtained by her for his misconduct. As stated by Judge Davis in Fickel et al. v. Granger, 83 Ohio St., 101, on page 106:
“Alimony is an allowance for support, which is made upon considerations of equity and public policy. * * * It is based upon the ’ obligation, growing out of the marriage relation, that the husband must support his wife, an obligation which continues even after a legal separation without her fault.”
Many other cases might be cited showing that the courts have ever recognized that the doctrine of alimony rests upon either the common-law or the statutory obligation of the husband to support the wife. It is unnecessary to review the history of the legislation of this state whereby the rights of married women have been gradually enlarged
If we examine Section 5699, Revised Statutes,. as it is insisted we must do in order to correctly construe Section. 11992, General Code, we find that the amendment begins with these words, “But in any case” when it appears to the court, that the husband is the owner of but little or no property, etc. It is significant that the amendment did not read “But in any case when a divorce is granted.”
“Nor is it accurate to treat the change in the statute as the work of the codifying commission. Their codification was submitted to, considered by, and adopted by the law making body of the state, the general assembly. It should not receive any less respect because the change may have been • recommended by three commissioners learned in the law instead of being proposed in the first instance by some single member of the general assembly, and after all is said, the ■ enactment re
We .are unable to hold that the operation of Section 11992, General Code; is limited by Section 11990, and that a husband can not be awarded alimony unless a divorce is granted to the wife because of his aggression. If the legal duty devolves upon the wife to support the husband when she is able to do so, and he is disabled, and if that right can be enforced upon the granting to her of a decree for divorce, it would seem by every rule of logic and common sense that she would certainly be required to furnish such support while the marriage is still in force.
We are strengthened in our view of the plain intent of the legislature, in providing by Section 11992, General Code, for the granting of alimony to a husband, by a consideration of Section 11994, which provides, in substance, that the court may grant temporary alimony to either the husband or wife “during the pendency of the action for divorce, or alimony alone.”
An examination of the legislation to which attention has been called plainly shows that the legislature attempted to give a husband and a wife equal property rights, and to impose upon them mutual obligations, and to furnish means for the enforcing of those obligations, and we think that the court had the power to make the decree to which error is prosecuted.
Aside from all questions of the power of the court to grant the relief that it did as alimony, and by virtue of the statutory enactments relating to
The decree in the case at bar was evidently not based upon the sections quoted above, for the decree in this case is that the plaintiff is entitled to alimony, and the defendant is ordered to convey to the plaintiff an undivided one-half interest as and for alimony. In view of the fact that the petition contained all of the allegations necessary to present a case compelling the wife to furnish support to her husband, we deem it immaterial that the trial court denominated the award as alimony. The character of the allowance is not changed by the fact that in the decree it is designated as alimony. Kelso v. Lovejoy et al., 9 C. C., N. S., 539, affirmed without opinion, 76 Ohio St., 598, and Webster v. Miller, 18 C. C., N. S., 272, affirmed without opinion, 83 Ohio St., 473.
The court, while not in entire accord on grounds for affirmance, is unanimous in its conclusion that the judgment should be affirmed.
The decree will he affirmed.