30 Ohio C.A. 295 | Ohio Ct. App. | 1917
In the court of common pleas, division of domestic relations, the plaintiff, Maurice M. Condon, brought an action against the defendant, Margaret M. Condon, for divorce, alleging as a ground therefor that the defendant had been guilty of wilful absence for more than three years; that she had been guilty of gross neglect of duty in that she failed to perform the duties of a wife in preparing his meals and keeping his residence in
To this petition the defendant filed an answer admitting the marriage, that plaintiff is a bona fide resident of Hamilton county, Ohio, and that there were no children born of the marriage. But she denied that she was guilty of gross neglect of duty towards the plaintiff, and denied that she had been wilfully absent as alleged in the petition. For a second defense against the charge of gross neglect of duty set out in the petition the defendant averred that in a certain action for alimony brought by her in the insolvency court of Hamilton county, Ohio, numbered 3075 on the docket, the plaintiff filed his cross-petition against her charging her with the same gross neglect of duty that he charges in the petition in this case, and praying to be divorced from defendant on account thereof. She further set out that she filed her answer to said cross-petition in said case in the insolvency court, denying said charge of gross neglect, and praying on her own behalf that the cross-petition be dismissed ; that upon the issues so made by said cross-petition and answer a hearing was had in said insolvency court, and upon said hearing upon the 13th day of April, 1911, the said insolvency court did enter its final judgment and decree in said cause, finding among other things, upon the issues joined upon said charge of gross neglect of duty, in favor of this defendant, and that she was not guilty thereof as charged by plaintiff, and ordering and adjudging that said cross-petition for divorce in said cause in said insolvency court be
To this answer the plaintiff filed a reply in which he denies that he is estopped or barred from setting up in the petition the allegation of gross neglect of duty, and he denies that he does not bring this action in good faith, and he denies that there was any mercenary motive in his attempts to effect a reconciliation, denies that he is a continual and habitual drunkard, denies that he has been con
It will be noticed that the reply fails to deny the decrees entered in the insolvency and in the circuit courts of Hamilton county, and fails to deny that the decrees were found against him upon the issue of gross neglect of duty and abandonment.
Upon the trial of this case in the common pleas court before his honor Charles W. Hoffman, judge of the division of domestic relations, the defendant offered in evidence the pleadings in the former alimony and divorce case in the insolvency court of Hamilton county, and also the decree entered by that court in said cause, and the decree entered by the circuit court of Hamilton county when said cause was appealed to that court. The court of common pleas refused to hear any further testimony with regard to the charge of gross neglect of duty or wilful absence, as set up in the petition, and claimed to have occurred since the entry of said judgments of the insolvency court and the circuit court of Hamilton county. The court further adjudged and decreed that the petition of plaintiff herein be dismissed and that the defendant Margaret M. Condon recover from the plaintiff her costs and counsel fees. To all of the foregoing
At the outset of the case it is claimed that there is no bill of exceptions filed in this case. It appears from the record that the judgment entry was made by the court of domestic relations on August 11, 1916, and a bill of exceptions was duly filed in the court of common pleas on September 20, 1916, and transmitted by the clerk of that court to Judge Hoffman on October 2, 1916. Judge Hoffman, on the same day, October 2, 1916, returned the bill to the clerk of the court of common pleas with his acknowledgment of the receipt thereof and his signature. '
The petition in error together with a transcript of the docket and journal entries of the court of common “pleas and the original pleadings were filed in this court on October 16, 1916, but no bill of exceptions appears to have been filed on that date. A bill of exceptions duly signed by Judge Hoffman, and purporting to contain all the evidence offered below, was filed in this court on November 24, 1916, one hundred and five days after the judgment was rendered in the common pleas court. The petition in error in this court was filed October 16, 1916, within the seventy-day period fixed by the statute for the filing of a petition in error, but the requirements of the statute that the bill of exceptions shall be filed with the petition in error within the statutory time of seventy days was not complied with. As an excuse for this, counsel for plaintiff in error claims that he left the bill of exceptions with the
But, considering the bill of exceptions and all the evidence adduced, together with the rulings of the court in failing to hear other evidence, we are of the opinion that the court of common pleas did not err in dismissing the petition of plaintiff.
Ordinarily a judgment of the court of common pleas in a divorce matter is not reviewable by this court, on the grounds of public policy. It may be claimed under Section 12002, General Code, that where the court of common pleas dismisses the petition without a final hearing, error may be prosecuted to this court. That section provides:
*196 “No appeal shall be allowed from a judgment or order of the common pleas court under this chapter [the chapter relating to divorce and alimony] except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony.”
This is not an appeal proceeding, and, furthermore,' under the new constitution, as adopted in 1912, there is no longer any appeal from a judgment of divorce or alimony to the court of appeals. But, in view of the fact that this section remains unrepealed, we think, as has been said by this court in the Schmid case decided today, by analogy it appears to be the policy of the legislature to allow a review of a divorce case when there is a judgment of dismissal without a hearing. It appears to us that this judgment of dismissal of the action without a full hearing is subject to review. But so long as the decree of alimony in the former case, in favor of the defendant in error against the plaintiff in error, which was entered by the circuit court of Hamilton county in 1913, remains in full force, unreversed and unmodified, the plaintiff in error in this case is bound by all the findings set out in that decree touching the matter of gross neglect of duty and abandonment. In the decree the circuit court did find that the plaintiff in error had abandoned the defendant in error and that she was not guilty of any neglect of duty toward plaintiff in error, and awarded her alimony of fifteen dollars per week. The plaintiff in error in the petition below set out no new cause of action, and as long as defendant in error in this case is living apart from plaintiff in error and receiving alimony from
These questions of fact, having been determined against the plaintiff in error, cannot be reopened and relitigated in a subsequent action between the same parties. We think this doctrine is fully supported by the following authorities: Miller v. Miller, 150 Mass., 111; Harrington v. Harrington, 189 Mass., 281; Weld v. Weld, 27 Minn., 330, and 1 Nelson on Divorce and Separation, Section 92.
The author of the last-named authority says in the section cited that no divorce can be had for wilful absence or separation where the separation on the part of the accused person is justified, and that a wife is justified in living apart from her husband where she has established a right to do so by obtaining a decree for separate support and maintenance.
If the plaintiff in error in this case has any new grounds for divorce against his wife, which have arisen since the rendition of the judgment in the circuit court, or if the decree of the circuit court of Hamilton county had been set aside or modified, he would have a right to maintain an action for divorce against the defendant in error. But so long as the status of the parties remains as it has been fixed by the decree entered by the circuit court of Hamilton county, and so long as that judgment continues unreversed and unmodified, we hold the plaintiff in error cannot maintain an action for divorce on the ground of wilful absence against the defendant in error.
Judgment affirmed.