Lead Opinion
Although the record may read like a comedy to some, to those who esteem the integrity of the administration of justice and the sanctity of marriage the record unravels a tragic story.
The spectre of collusion lurks beyond the page corners of the record, eluding definite proof. The case at bar, in our day, justifies the following perceptive statement of Judge Hitchcock in Harter v. Harter (1832),
“Perhaps there is no statute in Ohio more abused than the statute concerning ‘divorce and alimony.’ Perhaps there is no statute under which greater imposition, is practiced upon the court, and more injustice done to individuals. It seems to be considered by a great portion of our community, that the mar*35 riage contract is the least obligatory of all others [sic], and that nothing more is necessary to dissolve it than that application should be made to this court [the Supreme Court, prior to 1843, had exclusive divorce jurisdiction], to register a decree to this effect. ’ ’
The law of Ohio now is, of course, to the contrary, Section 3105.01, Revised Code, but the widespread attitude of disregard for the marriage contract is still a grave cause of concern.
These well-known facts make it incumbent on a trial court to be vigilant in its regard for the legislated divorce policy of this state. Judge Zimmerman, in State, ex rel. Haun, v. Hoffman, Judge (1945),
“Because of the interest of the public in the preservation of the marital status, divorce suits are accorded different treatment from ordinary civil actions and it becomes the duty of a court in such cases to be vigilant against collusion and to see that there is compliance with the applicable statutes.” (Emphasis added.)
The integrity of the judiciary suffers when it yields to pressures which seek to sap the strength from our statutes. If a dilution of the divorce laws is desired, the petition for change should be placed before the General Assembly and not filed with a court.
The appellant seeks a vacation of the divorce decree, after term, on the ground of irregularity in the proceedings of the trial court. Before that claim matures for our consideration, some threshold questions must be answered.
First, was appellant’s failure to appeal a bar to her filing of a motion to vacate? No. The remedies of appeal and vacation are “cumulative” or, more precisely, “alternative”; a party need not prosecute an appeal as a condition precedent to moving for a vacation of a judgment. Kesting v. East Side Bank Co. (1905), 14 C. C. (N. S.) 529, 530, affirmed (1907),
Second, does appellant by her motion to vacate seek a statutory (Section 2325.01, Revised Code) or a common-law remedy? In Ohio, both remedies are available after term in an appropriate case, Jelm v. Jelm (1951),
Although a court does not have inherent power at common law to make substantive amendments to its judgments after term, Botkin v. Commrs. of Pickaway County (1824),
But where the court itself makes the error complained of and the judgment is effective, the reasons for the court’s inherent power to vacate vanish. Protection from being “used” is no longer necessary.
In the case at bar, we see the shadow of collusion, as did the Court of Appeals. However, the appellant does not base her claim on the grounds of fraud or collusion, nor does she assert that the judgment was void ab initio. Therefore, appellant does not call upon the court to exercise its inherent power
Third, the statutory provision for vacating a judgment after term where there has been an “irregularity in obtaining a judgment or order” is Section 2325.01 (C), Revised Code. Since the Court of Appeals and the appellee rely heavily on the equitable defense of laches, we must determine the viability of that defense and the nature of the special proceeding under Section 2325.01 (C), Revised Code.
The special proceeding to vacate a judgment on grounds of “irregularity” has its own statute of limitations of three years, Section 2325.10, Revised Code. Such special statutory proceeding is not an equitable proceeding because “the court at law” is competent “to afford the complainant, upon motion, all the relief he could obtain in a court of equity." Critchfield v. Porter, supra, at 523. See Buckeye State Bldg. & Loan Co. v. Ryan, supra. However, the “relief which is now given by courts of law, upon motion, is equitable in its character, extended upon equitable terms, and so framed as to protect the rights of one party without sacrificing or jeopardizing those of the other.” Critchfield v. Porter, supra; In re Estate of Vanderlip (1943),
However, “it is established that laches within the term of the statute of limitations is no defense at law,” 34 American Jurisprudence, Limitation of Actions, Section 47; cf. Stanley v. Stanley, Admr. (1890),
In Buckeye State Bldg. & Loan Co. v. Ryan, supra, the Court of Appeals for Clermont County said that laches was not a defense in the statutory proceeding. However, the court was
The contrary position is taken by the courts of Minnesota. Even though the special procedure is circumscribed by a statute of limitations, laches may prevent a vacation prior to the tolling of the time. E. g., National Council of Knights and Ladies of Security v. Canter (1916),
The defense of laches has played a critical role in this drama. The Court of Appeals gave three reasons for affirming the trial court’s refusal to vacate. The second was the passage of nearly six months between the journalization of the divorce decree and the filing of the motion to vacate. The third was the subsequent remarriage of plaintiff husband to his recently divorced companion. These reasons are but the two essential elements of laches — the passage of time with a resulting hardship on the opposing party. 34 American Jurisprudence, Limi
Although in an appropriate case, laches would he a viable defense, a thorough scanning of the record fails to uncover any evidence to support the finding of hardship resulting from delay. In fact the only evidence in the record — a certified copy of the marriage record of plaintiff husband and his companion —shows that these “victims of delay” were married within one week of the journalization of the divorce decree. Consequently, since no one can argue (and no one has) that appellant was lax in failing to file her motion to vacate within a week, the delay in filing was not prejudicial to the plaintiff husband and his homebreaking companion. The passage of time without prejudice does not support the defense. E. g., Russell, Admr., v. Fourth Natl. Bank (1921),
We are well aware that by a glance at Section 2505.31, Revised Code, this court does not ordinarily weigh the evidence. However, this court will examine the record to see if there is evidence to support a finding. State, ex rel. Kobelt et al., Trustees, v. Baker (1940),
Now that the procedural thickets have been cleared, we face unobstructed the substantive issue presented by this case: Was there an “irregularity in obtaining judgment?” We hold that there was.
An “irregularity” which is the basis for vacation has been defined as the “want of adherence to some prescribed rule or mode of proceeding.” Ralston v. Wells (1892),
In the ease at bar, the error affected the nature of the
When such protests are made by the party who has petitioned (or cross-petitioned) for a divorce, what is the trial court’s duty? What is the “prescribed * # * mode of proceeding”?
The court had a duty to assure itself that appellant in fact wanted a divorce, for the public policy of Ohio and its sister states favors the preservation of the marriage bond, 17 Ohio Jurisprudence 2d, Divorce and Separation, Section 3; 17 American Jurisprudence, Divorce and Separation, Section 12; 27A Corpus Juris Secundum, Divorce, Section 8 b. Thus the divorce laws are strictly construed against the granting of divorces. See State, ex rel. Haun, v. Hoffman, Judge, supra; Calvert v. Calvert (1936),
Since the permanency of marriage contracts is of peculiar concern to the state, “the state is a party to every divorce and .alimony proceeding and in Ohio where no provision by law is made for actual representation, the court represents the state.” Pashko v. Pashko (1951),
Divorce is always at the option of the petitioner. It can never he imposed, even if the petitioner is clearly entitled to a divorce, for the law encourages the condoning of marital infidelities. See Brodsky v. Brodsky (1925),
Cross-petitioner protested three times that she did not want a divorce. It thus became incumbent upon the trial court to ascertain whether Mrs. Van DeRyt in fact wanted a divorce. As the representative of the state, as a quasi-litigant pressing for strict application of the divorce laws, the trial court could not leave that question to conjecture. The trial court was thus remiss in its duty of representing the state. This error reflected a misconception of the trial court’s role in divorce cases; such a serious error must be considered an “irregularity” making the judgment voidable and susceptible to attack under Section 2325.01 (C), Revised Code.
In view of the well-settled law as to the special nature of divorce proceedings, we hold that where substantial doubt exists that the petitioner for divorce wants a divorce, it is incumbent on the trial court to settle such doubt.
The judgment of the Court of Appeals is reversed. The motion to vacate the judgment of the Court of Common Pleas is ordered sustained.
Judgment reversed.
Dissenting Opinion
dissents from the last sentence of paragraph four of the syllabus and from the judgment, especially since the wife was at all times during the divorce proceeding represented by counsel.