Thе parties to this action are not in accord as to the issue which is before us. Defendant asserts nine points as his statement of the questions of law involved, while the plaintiff premises her statement as to the issue in this appeal on certain assumptions which are not accepted.
Plaintiff contends that such a decree may not be so modified because of the decision of this court in the case of Newman v. Newman,
“An alimony decree based upon an agreement between the parties is not subject to modification by a court after term in the absence of mistake, misrepresentation or fraud and in the absence of a reservation of jurisdiction with reference thereto. (Law v. Law,
In the Newman case, the wife obtained a divorce and alimony decree from her defendant husband in 1933. The decree incorporated the provisions of a separation agreement as to alimony. In 1952, she filed a petition seeking modification of the decree as to the amount of alimony, claiming ill health as to herself and changed financial and tax conditions as to both. The husband filed a motion to strike numerous paragraphs from plaintiff’s petition for modification, which the trial court treated as a demurrer and sustained. The Cоurt of Appeals reversed the judgment of the trial court, and this court reversed the judgment of the Court of Appeals and affirmed that of the trial court.
The syllabus in the case of Law v. Law,
“A divorce being decreed for the aggression of the husband, and alimony being adjudged to the wife in accordance with an agreement of the parties, the terms of the decree as to alimony are not, if unaffected by fraud or mistake, subject to
In the Law case, the husband sought a reduction of the annual allowance of the alimony almost five years after the decree was granted, regardless of the fact that the plaintiff wife had not remarried.
The trial court reduced the allowance although not in the amount prayed for and the Circuit Court modified that amount. This court in a four-judge per curiam decision reversed the lower-court judgments and dismissed the petition to modify.
It should be particularly noted that in neither the Newman case nor the Law case was the issue of remarriagе by the former wife presented, since in each case the separation agreement provided for termination of alimony in such event, and neither former wife was remarried.
Remarriage was not involved in the case of Mozden v. Mozden,
There seems to be a paucity of cases in this jurisdiction presenting the same factual situation as that presented here, as in most instances the parties provide in their agreement for the termination of permanent alimony in the event of remarriage by the wife.
In the case of King v. King,
While that case is not comparable to the one now before us, it is cited as the only case of record in this court wherein ali
“Mоrever, while designated as alimony, the sum was awarded, not strictly as alimony (2 Bishop’s M. &'D., Section 553), but doubtless with a view to the support of the appellant’s own child.”
There is no question involving support of children in the instant case.
In the case of Olney v. Watts (1885),
The third paragraph of the syllabus in that case is as follows:
“Where alimony had been granted, in installments, to a divorced wife, and she is afterward remarried to a man financially able to, and who does, in fact, support her, these facts would prima facie be a good cause for modifying the former decree so as to reduce the amount to be paid for her support to a nominal sum, or such sum as, in the changed condition of the defendant, the court might deem just and reasonable.”
The cause was remanded to the trial court. This language in the opinion (page 508) is of interest:
“If, however, it shall, in the further progress of the case, appear that the former decree, instead of being in thе nature of alimony payable in installments for the support of the wife, was in the nature of a permanent division of the husband’s property, and that the parties fixed the same by their own agreement, and the action of the court in the premises was simply an
That paragraph of the Olney case syllabus quoted above follows the general rule as stated in 2 Nelsоn on Divorce and Annulment (2 Ed.), 432. (See, also, Martin v. Martin, 225 Ark., 677, 284 S. W. [2d], 647.) The Olney case has never been overruled or modified, although it is mentioned and distinguished in the opinion in the Newman case.
The principle established in the Olney case is far more pertinent to this case, however, than that in either Newman or Law.
The Olney and King cases, supra, are the only reported cases we can find in Ohio involving the issue of modification of a permanent alimony order in the event of remarriage by the wife, and in both cases this court upheld the principle.
This brings us to a consideration of the function and purpose of alimony. (See Section 3105.18, Revised Code.)
In her original petition (for alimony alone) plaintiff here alleged that “she is not employed and has no income whatsoever, by reason of which she is dependent entirely upon the defendant for maintenance and support.” Although this allegation is not carried into her amended petition, she there prays “that she be decreed a divorce, permanent alimony and such other and further relief as may be just and proper in the рremises. ’ ’
The obligation of alimony was considered in the case of Fickel v. Granger,
“Alimony * * * is an award by the court upon considerations of equity and public policy and is founded upon the obligation, which grows out of the marriage relation, that the husband must support his wife, which obligation continues after legal separation without her fault.”
In the case of Friedman v. Schneider (Supreme Court of Florida, 1951),
The question then arises whether it is against public policy to enforce a decree having such a result even though it is based upon an agreement that is silent as to such a contingency.
In some states, notably Illinois, New York, New Jersey and California, provisiоn is made by statute to terminate alimony awarded to a wife from her divorced husband in the event of her remarriage.
According to the weight of authority in other states, the wife’s remarriage to a man capable of furnishing her suitable support constitutes a ground for terminating alimony, although the remarriage of such divorced wife does not ipso facto terminate the former husband’s obligation to pay alimony. See 112 A. L. R., 253 et seq.; 6 A. L. R. (2d), 1296.
The following language from the case of Alsop v. Commissioner of Internal Revenue (1937, C. C. A.3), 92 F. (2d), 148, is pertinent here:
“Though it is generally seated that the remarriage of the wife does not аutomatically release the former husband from the duty of supporting her (19 C. J. 625), her remarriage is almost universally held to be sufficient grounds for an order suspending or abrogating further payments of alimony upon application therefor by the former husband. * * * [Citing-many authorities.]
“* * * It has been held that 'good public policy would not compel a divorced husband to support his former wife after she has become1 another man’s wife, except under extraordinary
The substance of the last paragraph of the preceding-quotation was taken from the case of Cohen v. Cohen,
In Cary v. Cary (1930),
“Season requires us to hold that the remarriage of the wife should relieve the husband from the obligation of supporting the wife of another man. To permit her to have alimony from the first husband as an equivalent for her support after she had secured the legal obligation from the second husband to support her would give her support from her present and her former husband, and for each subsequent divorce for the husband’s fault she might again be awarded alimony for her support. The legislative intent never could have contemplated such a situation. It would offend public policy and good morals. It is so illogical and unreasonable that a court of equity should not tolerate it.
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“The better rule which we adopt, save in the most exceptional circumstances, draws from the voluntary action of the wife in remarrying the inference that she has elected to obtain her support from her second husband and has thereby aban
In Eaton v. Eaton (1939), 90 N. H., 4, 3 A. (2d), 832, the following appears in the opinion:
“Public policy, social morals, private decencies, and the legal conceptions of the institution of marriage all unite in insistent demand that the libelant’s new marriage be held to constitute her abandonment of the right to further payments of alimony from her former husband. ’ ’
It is contended here that the parties had the right under Section 3103.06, Revised Code, to enter into an agreement such as that made in this case, and that once made it “is binding upon both parties and cannot be avoided unless and until a court of equity has determined that it is unenforceable because of fraud or a violation of the general rules controlling actions of persons occupying confidential relations,” citing Meyer v. Meyer,
In the Meyer case,, there was a separation agreement between the parties which provided for a division of the property and that in the event of subsequent action for divorce neither party would ask for alimony. That action was brought in equity and required an avoidance of the separation agreement before alimony could be allowed.
Referring to the language contained in the decree here as quoted supra, it is to be noted that such language is not indisputably clear. Stripрing the statement down to its bare essentials, the trial court said, in substance, that “whereas the defendant has agreed to pay and the plaintiff has agreed to receive as permanent alimony the sum of $150 per month, said agreement is hereby approved and confirmed and the defendant is ordered to pay to plaintiff the sum of $150 per month on the first day of each month hereafter as and for permanent alimony. ’ ’
From the record it is not clear whether the agreement was written or oral so that we arе powerless to now determine whether the parties intended between themselves that payments would terminate on the death of the defendant or the death of plaintiff or in the event of her remarriage. In fact, the entry
In the case of Hassaurek v. Markbreit, Admr.,
There the language of the order is clear and unambiguous. Following the husband’s death, payments were continued for 14 years when further payments were refused. This court unanimously held that the order of alimony contained in the decree was a binding obligation upon his estate until her death or remarriage.
In the case of Snouffer v. Snouffer,
The ambiguity of the order there was clarified in a four-to-two decision. The syllabus in that case states:
“Where, upon the granting of a divorce to the wife for aggressions of the husband, there is an equitable division of the husband’s real and personal estate made, and the portion retained by the husband is ordered to be ‘held and owned by him, free and clear from the inchoate dower estate’ of the wife, аnd the wife is further awarded, as alimony, $100 per month, payments to continue so long as she remains unmarried, in the absence of contract or statutory provision to the contrary, such decree with respect to the installment alimony payments will be held not to embrace periods beyond the death of the husband.”
In the case of DeMilo v. Watson, Exr.,
Thus, we see from those three cases that alimony may be continued beyond the death of the husband where the language of the cоurt order or agreement (if there is one) between the parties is clear. For obvious reasons, of course, installment alimony payments terminate with the death of the -wife. The equity power mentioned in the DeMilo case was fully recognized by the Legislature in 1951 when it amended Section 8003-21, General Code (Section 3105.20, Eevised Code), by adding the sentence, “In any matter concerning domestic relations, the Court of Common Pleas shall not be deemed to be deprived of s its full equity powers and jurisdiction.” For further discussion of this power see, also, Robrock v. Robrock,
Compare, also, two cases involving agreements of parties for the support of minors. In the case of Corbett v. Corbett,
“A decree in a divorce action, unconditionally fixing the amount and method of payment by the husband for the support : of a minor child pursuant to and in accordance with a previous .
It is apparent from those two cases that continuing jurisdiction is implied regardless of any agreement between the parties in order that adequate support of minor children may be assured, but that no decree fixing the amount for such support based on an agreement between the parties may be modified so as to lessen such amount. Again we have an exercise of equitable power having due regard for contractual agreements.
In the Tullis case, Hart, J., stated in the opinion (page 192): “This court has also held that even though such a contrаct has been made a part of the decree of divorce, yet because of the continuing jurisdiction of the court and because of the demands of public policy, the court may subsequently increase the support allowance for children if changed circumstances require it, since a parent cannot by his own contract relieve himself of the legal obligation to support his minor children.” It is, of course, a well known rule that equity will not enforce an illegal or fraudulent contract or one which is against public policy. Public policy having been indicated in the Tullis case with respect to requiring adequate support of minor children by the father regardless of a separation agreement, it follows that public policy should not require the continuance of alimony payments by a former husband to the divorced wife after she has by her remarriage relieved him of the legal obligation to support her.
The Newman case recognizes the continuing equity power of the courts in matters relating to divorce and alimony in that it made the agreement there “not subject to modification * * * in the absence of mistake, misrepresentation or fraud.”
Excerpts from two cases in other jurisdictions are also pertinent here.
In the case of Hartigan v. Hartigan,
And in the case of Kuert v. Kuert (1956), 60 N. M., 432,
< í >* # # we announce our rule thus:
‘ ‘ On the application of the divorced husband to abate support payments to the divorced wife on the ground of her remarriage such application should be granted as of the date of her remarriage unless she proves extraordinary conditions justifying continuance of the former husband’s duty to support his former wife after she has bеcome the wife of another man, and the evaluation and effect to be given these conditions rests in the sound discretion of the trial court.
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“We think further, that the rule which we have announced is consistent with the dictum in our Mindlin decision, with our holdings in other cases in this field, with sound public policy and plain common sense. When the wife contracts a subsequent marriage with another, thus creating under Section 57-2-1 N. M. S. A. 1953 a duty of support in him, good public policy does not demand that she continue to receive support from her first husband unless she prove exceptional circumstances. The purpose of alimony is to provide support for the former wife, Lord v. Lord, 37 N. M., 454, 455,
It is quite apparent from this array of authorities cited and quoted from, and it is the conclusion of this court, that it is contrary to good public policy to require a divorced wife’s former husband to continue to make alimony payments to her
The decisions in the cases of Law v. Law and Newman v. Newman, supra, are clearly distinguishable from the present case in that the agreement in each of those cases specifically provided for termination of alimony in the event of the wife’s remarriage, and the issue of remarriage was not in either case.
The judgment of the Court of Appeals is reversed and this cause is remanded to the Court of Common Pleas for further proceedings in accordance with this opinion.
Judgment reversed.