16 Ohio App. 92 | Ohio Ct. App. | 1922
This case comes into this court on error to the court of common pleas of Hamilton county, division of domestic relations.
Plaintiff in error, plaintiff below, filed an action, No. 172282, for alimony against the defendant in error, and a decree was entered allowing forty dollars per month for alimony and support of children.
The only defense presented was that the original decree in so far as it referred to alimony was fixed by the agreement of the parties, and therefore, could not be modified.
The decree in case No. 172282 finds that “plaintiff is entitled to alimony as prayed for,” and later provides that “John Connolly, is ordered to pay through this court to the plaintiff the sum of forty ($40) dollars per month * * * for the support and maintenance of said minor children.” It further provides: “The above amount of forty ($40) dollars per month is in full for all .claims of the plaintiff against the defendant for alimony and support of said children, provided, however, that the court at any time may discharge the defendant from the payment of the above amount or any part thereof, to all of which the plaintiff and defendant agrees.”
If this judgment was solely a judgment for ali
It is contended by defendant in error that the only way the question could have been raised was by motion in the original alimony suit. It might either be raised in that suit by motion, or by a new action filed for that purpose.
The cross-petition on which the divorce case was tried was an action between the same parties and properly raised the question, since all of the facts and the existing circumstances were before the court. The cross-petition sets forth allegations of changed conditions and prays, among other things, for the following relief: “That she be granted and adjudged such sufficient alimony, for the proper support of herself, and said minor children, and their education as may be just.”
There was a motion filed before the final hearing asking for an increase of alimony, which the court properly overruled, as it had been fixed by agreement and carried into the decree in cause No. 172282. The cross-petition, however, did ask for a modification of the order in the former action for support of herself and children. The court in the final hearing should have passed upon the question as to the support of the children, but, as definitely shown by the decree, did not do so, for the reason that he considered this question settled in the other case.
"We do not make any finding as to whether or not the evidence showed such a change in conditions as to warrant any increase for the support and maintenance of the children, but the trial court should
Judgment accordingly,
