363 N.E.2d 753 | Ohio Ct. App. | 1976
This action was commenced on July 19, 1973, with the filing of a complaint for divorce by the appellee, Gaetano G. Cassaro. The complaint alleged that the appellant, Rosa Cassaro, had been guilty of gross neglect of duty and extreme cruelty during the continuance of their marriage.
An amended complaint was filed by the appellee on June 23, 1975, alleging as an additional ground for divorce that the parties had for the last two years lived separate and apart without cohabitation. Two years of uninterrupted separation without cohabitation became a ground for divorce on May 7, 1974, pursuant to R. C.
On October 10, 1975, after a hearing on the merits at which both parties were represented by counsel, the court granted the plaintiff appellee a divorce, pursuant to provisions of R. C.
"* * * the parties have, without interruption for two years, lived separate and apart without cohabitation as charged in the petition and that by reason thereof plaintiff is entitled to a divorce as prayed for."
The evidence and testimony presented at the hearing disclosed that the parties had lived separately since June 3, 1973, when appellant left the appellee, stating to him that she was going back to Italy. Upon her return to the United States on June 15, 1974, she was unable to gain entrance to their apartment, as the appellee had changed the locks on the doors during appellant's absence.
Appellant testified that she had been refused admittance to the apartment; that she was still refused admittance to the apartment and that during the entire period from June 3, 1973, until trial she had "no relationship whatsoever with the plaintiff."
The trial was commenced on June 23, 1975, and the court's judgment entry was filed on October 10, 1975. The period of separation of the parties from the time the appellant left the appellee on June 3, 1973, until the effective date of R. C.
The decision of the trial court also granted appellant $30.30 per week periodic alimony, and ordered that each party pay his or her attorney fees.
It is from this order that appellant filed her notice of appeal. She assigns five errors:
1. The court erred in granting a divorce under Section
2. The retrospective application of the grounds set forth in Section
3. The judgment of the court is contrary to law and contrary to the evidence in that there is no evidence supporting the granting of the divorce under Section
4. The court committed prejudicial error in not awarding attorney fees as expenses to the defendant.
5. Other errors apparent upon the face of the record and occurring during the course of the proceedings.
Appellant's first and second assignments of error can be considered together as they both allege that the trial court erred in applying R. C.
After a review of the applicable law in this and other jurisdictions, we do not agree with the appellant, and construe R. C.
The 1974 amendment added division (K) to R. C.
"On the application of either party, when husband and wife have, without interruption for two years, lived separate and apart without cohabitation. A plea of res judicata or of recrimination with respect to any provision of this section does not bar either party from obtaining a divorce on this ground."1
The only condition imposed upon the plaintiff in order to obtain a divorce under this section is to demonstrate that the parties have, without interruption for two years, lived separate and apart without cohabitation. The Ohio *371 legislature in enacting this section provided no defenses to this new ground for divorce and specifically made certain other defenses inapplicable.
We conclude the intent of the Ohio General Assembly to be the same as that of the New York state legislature in the enactment of its "no fault" divorce provision. The policy behind the New York statute was stated by Chief Justice Fuld of the New York State Court of Appeals in Gleason v. Gleason (1970),
"* * * The real purpose of this nonfault provision was * * * to sanction divorce on grounds unrelated to misconduct * * *. Implicit in the statutory scheme is the legislative recognition that it is socially and morally undesirable to compel couples to a dead marriage to retain an illusory and deceptive status and that the best interests not only of the parties but of society itself will be furthered by enabling them `to extricate themselves from a perpetual state of marital limbo.'"2
In holding that the application of R. C.
We are also aware of the principle which presumes the prospective operations of statutes.5 We have determined, however, that it would be incongruous for us to conclude that the Ohio General Assembly in enacting R. C.
We are persuaded that the Common Pleas Court was *373
correct in interpreting R. C.
The appellant's first and second assignments of error are overruled.
In her third assignment of error the appellant argues that the finding of the trial court that the parties had been separated for two years without cohabitation was against the manifest weight of the evidence. The assignment of error is without merit and is overruled.
The appellant's narrative statement of proceedings reveals undisputed testimony that the parties had not lived together since the appellant left the appellee for Italy on June 3, 1973. At the time of the separation the appellee was 89 years old. The record clearly indicates that the appellant was out of the United States for over a year, and upon her return she was unable to gain admission to the appellee's apartment. Appellant further testified that since June 3, 1973, she had "no relationship whatsoever with the plaintiff."
In weighing the evidence this court will not determine factsde novo nor substitute our view of the testimony for that of the trier of fact who heard the witnesses and observed their demeanor, State, ex rel. Squire, v. Cleveland (1948),
In the case at bar the trial court could only conclude from the above facts that the parties had, without interruption for two years, lived separate and apart without cohabitation and, consequently, granted appellee a divorce pursuant to R. C.
Appellant's fourth assignment of error alleges that the trial court abused its discretion in ordering each party to pay his or her own attorney fees.
Under R. C.
In the instant case the evidence demonstrated that the appellee draws $256 per month from workman's compensation and $205 per month from social security.
In Swanson, supra, at page 95, this court stated the facts to be considered in granting an alimony award:
"But the initial overriding consideration is the financial ability of the individual in question to meet the demands of any award. [Cite omitted.] Not only must the award be within the individual's ability to pay, but it must also leave that individual the means to maintain his own health and well being by obtaining proper food, shelter and clothing, and it must not burden him to the extent his incentive to pay is destroyed." (Cite omitted.)
Given the income and expense of the appellee and the standards developed in Swanson this court cannot hold that the trial court abused its discretion in ordering each party to pay his or her own attorney fees. Consequently, we overrule this assignment of error.
We also find the fifth assignment of error by appellant to be without merit. Appellate Rule 12(A) states in relevant part:
"* * * Errors not specifically pointed out in the record and separately argued by brief may be disregarded * * *."
Appellant has neither pointed out any additional errors nor separately argued them before this court.
Consequently, the decision of the Court of Common Pleas is affirmed. The order of alimony pendente lite granted the appellant by this court7 during the pendency of this appeal is vacated, effective as of the date of this entry, which leaves the alimony order due and payable in the amount ordered by the trial court. The resolution of appellant's motion to show cause is remanded to the trial court for further proceedings according to law.
Judgment affirmed.
DAY and STILLMAN, JJ., concur.
"On the application of either party, when husband and wife have, without interruption for two years, lived separate and apart without cohabitation, and four years in the case in whichone of the parties is continually confined to a mentalinstitution. A plea of res judicata or of recrimination with respect to any provision of this section does not bar either party from obtaining a divorce on this ground." (New material in italics.)
"An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds: * * *
"(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of two years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment."
