244 N.E.2d 512 | Ohio Ct. App. | 1968
Lead Opinion
This is an appeal from a judgment of the Common Pleas Court of Franklin County, Division of Domestic Relations, awarding the appellee custody of children, support and property division, and declaring valid a previously rendered decree of divorce granted by a German court.
Appellant and appellee were married in 1950 and have three children. Appellant has been employed in Germany since 1961. In 1965, appellee left Germany and returned to the United States with the children. In late 1966, appellant filed an action for divorce in a German court. No personal jurisdiction was obtained over appellee by the German court.
In December 1966, and while the German case was pending, appellee filed an action for divorce in the Common Pleas Court of Franklin County, Division of Domestic Relations. Appellant was then present in Franklin County and was personally served with process. Appellee has fulfilled all residence requirements under Ohio law.
In May 1967, the German court granted appellant a divorce. In November 1967, the Ohio case came on for hearing. Appellee withdrew her prayer for divorce. The court declared the German divorce valid and recognized the German decree, awarded custody of the children to appellee, ordered support, and granted $3,500 "as alimony * * * in lieu of all property rights."
Appellant contends that the parties were validly divorced by the German decree and, therefore, no divorce could be granted in Ohio. See Cooper v. Cooper (1836),
A decree by a court of a sister state or a foreign court having proper personal jurisdiction of both parties should be binding on the parties — and in the case of a sister state must be accorded full faith and credit. See Gilbert v. Gilbert
(1911),
In Slapp v. Slapp (1944),
The present statutes of Ohio reflect the court's position inSlapp. Section
Appellee has not established a ground for a decree of alimony only. Six grounds are provided for in paragraphs (A) through (F) of Section
The grounds for divorce are set forth in Section
However, paragraph (J) of the statute provides a unique ground which apparently has not before been relied upon in a reported Ohio case. The pertinent provisions are:
"The Court of Common Pleas may grant divorces for the following causes:
"* * *
"(J) Procurement of a divorce without this state, by a husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while such obligations remain binding upon the other party."
If the German decree is sufficient to make the provision applicable, the appellee has established a ground for divorce. The court would then have jurisdiction under Slapp to grant a divorce or, in any event, to grant alimony and other relief. In our opinion, paragraph (J) of Section
Under present principles of American divorce law, and particularly in view of the "full faith and credit" provision of the United States Constitution, the provision of paragraph (J) seems anomalous. Present law recognizes marriage as a status which can be the basis of "in rem" jurisdiction irrespective of a lack of personal or "in personam" jurisdiction. Simply put, one spouse may be validly divorced by a court even though no personal jurisdiction is obtained over the other spouse. In the case of a court of a sister state in this country, such a decree must be accorded full faith and credit. Williams v. NorthCarolina (1942),
Thus, under present day law, it is difficult to envision a situation in which one party is released from an obligation which remains binding upon the other. The proposition is conceivable only on the premise that the in rem decree was by the court of a foreign nation, as here, and that the Ohio courts would refuse to recognize the German decree as valid. To refuse recognition to a foreign divorce which was granted on the same jurisdictional grounds held adequate for an American court would be, in our opinion, most undesirable. However, if the Ohio statute is interpreted in the historical context of the law as it was at the time the statute was enacted, its meaning and applicaion to this case is clear.
The decision in Cooper v. Cooper (1836),
In 1853, there was much doubt concerning the validity of divorces granted in one state as applied in another state of the United States. It was not until 1869, some sixteen years after the Ohio statute, that the United States Supreme Court held that a divorce based on domicile and personal jurisdiction of both spouses was conclusive and binding not only in the state where granted but in sister states as well. Cheever v. Wilson (1869),
The application of full faith and credit to a decree madewithout personal jurisdiction of both parties remained in serious dispute. The issue was resolved in 1906 by a decisionagainst recognition. In Haddock v. Haddock (1906),
Haddock demonstrates the legal premises in the minds of the Ohio General Assembly in adopting the amendment of 1853. WhileHaddock was eventually overruled by Williams v. North Carolina
(1942),
Accordingly, in our opinion, appellee established a ground for divorce under Section
The judgment of the Common Pleas Court will be affirmed.
Judgment affirmed.
TROOP, J., concurs.
Dissenting Opinion
A reading of the German decree and the trial court's findings shows that the conditions of paragraph (J) of Section