14 Ohio App. 174 | Ohio Ct. App. | 1921
In 1912 present plaintiff in error, Gladys Hiler, brought an action in the court of common pleas of Butler county against her husband, Thurman G. Hiler, the defendant in error, for alimony and custody of the children, but did not ask for a divorce in that action. The husband filed an answer and cross-petition, praying for a divorce. The case was heard in 1914 and the wife was granted the custody of the children and alimony in the sum of $200 per year, payable in monthly installments. The wife, thereupon, with the children, went to live with her parents across the line in Indiana, while the husband lived with and worked for his parents in Butler county, Ohio. The parties continued to so live until July 29, 1919. Thereupon the wife by leave of court filed a supplemental petition in the original case, in which she asked for an increase of alimony and a divorce from her husband. The husband moved to strike the supplemental petition from the files, which was overruled,
Three questions are discussed in the briefs of' counsel of both plaintiff in error and defendant in error.
First: The plaintiff’s residence.
Second: The right to file the supplemental petition, and the consideration of the court thereon as to the question of divorce.
Third: The weight of the evidence.
The record discloses that the court heard the case on the merits on all the points presented.by the pleadings, refusing the plaintiff the divorce, refusing to change the order with reference to the custody of the children, but granting a small increase of alimony.
If the court was in error in considering the application of plaintiff in error for divorce on the supplemental petition, the wife cannot be heard to complain, as for aught that appears from the record the court heard the case on the merits; neither can the defendant in error complain, for the reason that he suffered no harm, as the finding of the court was in his favor. While the plaintiff in error, in the brief, states that the court’s refusal to grant the divorce was predicated largely upon the question of residence, this is not disclosed by the record. Moreover, the setting up of the action for divorce in the
The jurisdiction of the court under the original actiqn continued only for the purposes of the custody .of the children and the alimony question. The most that can be said for the supplemental petition is that it is an application for modification of the original decree for alimony and custody of the children. The court had jurisdiction under this pleading to hear and determine that question.
The court modified the former decree, increasing the alimony from $200 to $360 per year, and we do not find that this modification was manifestly against the weight of the evidence.
Judgment affirmed.
