Mallow v. Mallow, 84 N.E.2d 236

84 N.E.2d 236 | Ohio Ct. App. | 1948

This is an appeal from an order modifying a final judgment for alimony payable in instalments. The divorce was granted to the wife because of the aggression of the husband and he was ordered to pay $11 per week. The order appealed from reduced the alimony to $8 per week.

The bill of exceptions discloses that no substantial change had taken place in the earning capacity and financial condition of the husband since the award of $11 per week was made. Neither had there been any substantial change in the situation of the wife. The only change materially affecting the husband's ability to pay results from his subsequent remarriage.

The appeal, therefore, presents the question of whether the remarriage authorizes the reduction of the award.

By the great weight of the authorities, the remarriage of the husband furnishes no basis for a change in an alimony decree theretofore entered. Myers v. Myers, 62 Utah 90, 218 P. 123, 30 A.L.R., 74; Cropsey v. Cropsey, 104 N.J. Eq. 187, 144 A. 621,64 A.L.R., 1266; Kirkbride v. Van Note, 275 N.Y. 244,9 N.E.2d 852, 112 A.L.R., 243, at 246 et seq., and the Ohio case ofNash v. Nash, 77 Ohio App. 155, 65 N.E.2d 728, the second paragraph of the syllabus to which is as follows:

"The changes in the circumstances of the parties that may be considered in such a request for modification, must be material and not purposely brought about by the complaining party, and must be considered on the basis that the judgment sought to be modified was proper when made."

As no change in conditions justifying a modification of the alimony was shown, the order appealed from is reversed.

Order reversed.

MATTHEWS, P.J., ROSS and HILDEBRANT, JJ., concur.