1 Ohio Law Rep. 535 | Ohio | 1903
There was, upon the evidence, -no question of fact for the consideration. of the jury. The general question is whether, upon the conceded facts, the judgment should be for the plaintiff, as was held in the court of common pleas, or for the defendant, as was held in the circuit court. The decree of divorce upon which the plaintiffs action is founded is easily recognized as the termination of marital relations between a pair with whom respect had survived devotedness. Its terms show that the natural relations between the mother and -her children were to- continue so far as was compatible with a severance of the relations between the parents;, that although the evidence established the allegations of the wife’s willful absence, the husband desired to secure to her during her life such support as was consistent with his means; that it was by his request that his desire found expression in the terms of the decree, and that the obligation which it imposed was to continue during her life without regard to the duration of his own, if the wife should not by remarriage acquire other means of support. The binding character of this obligation was recognized throughout eighteen years by all the members of the family of the parties. It is now disputed by strangers. Certainly an arrangement so consonant with natural justice should be enforced unless it is forbidden by some inflexible rule of the law so beneficent in its general operation -that it should be maintained, notwithstanding hardships which -may result from its application to particular cases. Such a rule was thought to be applied to the case in the circuit court when it reversed the judgment of the court of common pleas because that court ‘liad no jurisdiction to render the judgment sued
“And the court may adjudge to her such share of the husband’s real or personal property, or both, -as it deems just' and reasonable.”
In view of the wide discretion vested in -the court in making that adjudication it can not -be said that its power to adjudge is limited to the allegations of the pleadings as in Rosebrough v. Ansley, 35 Ohio St., 107. The court having this duty to perform and having the parties and their counsel before it, with their consent and at the request of the husband adjudged to the wife during life the equivalent -of less than, one-third -of the dividends of the stock owned by the husband. Whether this judgment would have been an erroneous exercise of the jurisdiction which the statute vested in the court if it had been rendered without, we need not consider. It must now be regarded as settled beyond controversy that when, in an action for divorce, the court is satisfied from the evidence that' the marriage relations should be annulled, the parties
Judgment of the circuit court reversed and that of the common fleas affirmed.