Opinion
No. 31862
Decided April 26, 1950.
Divorce and alimony — Action dismissed for failure of proof — Subsequent alimony action — Dismissal for lack of evidence — Documents in divorce action introduced in alimony action — Res judicata.
APPEAL from the Court of Appeals for Ottawa county.
In 1941, Mrs. Engler instituted an action for divorce, alimony and custody of children, on the grounds of extreme cruelty and gross neglect of duty. The relief sought was denied and the petition dismissed on April 25, 1942, after a hearing on the pleadings and the evidence.
In August 1943, she filed a petition for divorce, division of property and restraining order against the disposing of property, on the grounds of gross neglect of duty and extreme cruelty. The cause was submitted on the pleadings and evidence. The court dismissed the petition "for the reason that plaintiff failed to prove any of her alleged grounds for divorce and alimony to the satisfaction of the court and that the testimony of the plaintiff as to gross neglect of duty and extreme cruelty of the defendant was not supported by sufficient other evidence."
In 1948, Mrs. Engler brought an action for alimony and injunction against the disposing of property. This petition alleges that plaintiff for several years had been separated from defendant solely in consequence of his severe and long continued ill treatment of her; that defendant refuses and for a number of years, particularly since the separation, has continually refused to support or in any way to contribute to the maintenance of the plaintiff; and that since her separation from defendant, which was caused by his ill treatment of her, she has been required to earn her own sustenance. The court dismissed the petition for the reasons hereinafter stated.
The Court of Appeals affirmed the judgment of the Court of Common Pleas, and a motion to certify the record was allowed by this court.
Mr. J.G. Hitchcock, for appellant.
Messrs. Rupp Hahn, for appellee.
Counsel for Mrs. Engler contends that the present appeal involves the question whether the dismissal of a petition for divorce and property division on the grounds of gross neglect of duty and extreme cruelty, for lack of proof of those grounds or corroboration thereof, is res judicata of a subsequent action for alimony on the ground of separation caused by ill treatment.
The record in the instant case is insufficient to present that question.
The statement in lieu of a bill of exceptions recites that at the trial in the Court of Common Pleas counsel for plaintiff "made his opening statement in which he disclosed that plaintiff based her action upon defendant's treatment of her prior to June 26, 1942, or thereabouts, the date of the parties' separation, as in the pleadings alleged and admitted." Thereupon counsel for defendant asked leave of court to then introduce into evidence in support of the defense of res judicata the pleadings, opinions and entries of the court in the aforestated cases instituted in 1941 and 1943. The requested leave was granted and the exhibits were offered and received in evidence.
The record does not show that counsel for Mrs. Engler made proffer of any evidence to support the allegations of her petition for alimony.
The journal entry of the Court of Common Pleas states, in substance, that plaintiff having offered no evidence of any acts of the defendant occurring subsequent to June 26, 1942, the admitted date of separation of the parties, and there having been received in evidence the aforestated documents filed in the two preceding cases both of which were dismissed, the court excluded all testimony and evidence of acts of the defendant occurring prior to June 26, 1942, on the ground of res judicata, and dismissed the petition on the ground there was no evidence to support the plaintiff's claim.
The plaintiff having failed to introduce or make proffer of evidence to support the allegations of her petition, the Court of Appeals did not err in affirming the judgment of the Court of Common Pleas dismissing the petition.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.