Summary
In Slapp v. Slapp (1944), 143 Ohio St. 105, the wife filed an action for alimony only in Ohio. While the action was pending, the husband obtained a Nevada divorce without personal jurisdiction of the wife.
Summary of this case from Rousculp v. RousculpOpinion
No. 29655
Decided March 29, 1944.
Divorce and alimony — Action for alimony only and costs deposited — Section 11981, General Code — Amended petition for divorce and alimony — Court may determine issues, although further costs not deposited — Divorce granted husband by court of foreign state — Subsequent action by wife in Ohio for permanent alimony — Court has jurisdiction to determine property rights and divide property, when.
1. After an action for alimony has been filed and a deposit for costs has been made as required by Section 11981, General Code, the determination of the issues raised by an amended petition praying for divorce and alimony, filed without the deposit of additional costs, is not erroneous.
2. Where, in a court of a foreign state, a divorce has been granted to a husband upon substituted service, in which action the court had no jurisdiction of the property rights of the parties, the wife so divorced may file an amended petition for divorce and alimony in an action by her for alimony pending in a court having jurisdiction of the husband so divorced and the property of the parties; and if the evidence warrants the granting of a divorce and alimony to her because of his aggression, except for the fact that he had already procured a divorce in such foreign state, the court has jurisdiction to determine the property rights of the parties and make a division of their property as though it had granted a divorce to the wife because of the husband's aggression.
APPEAL from the Court of Appeals of Summit county.
On November 2, 1939, Ruth E. Slapp, plaintiff, brought an action in the Common Pleas Court of Summit county against Maurice F. Slapp, defendant, charging him with gross neglect of duty and extreme cruelty, and praying for temporary and permanent alimony for her own maintenance and support, there being no children to the marriage.
Upon filing the petition, a deposit for costs was made with the clerk in the sum of $15.35. A summons accompanied by a copy of the petition was duly served upon the defendant the next day, November 3, 1939. On November 13, 1939, a motion for temporary alimony was sustained and the defendant was ordered to pay to the plaintiff, as temporary alimony, the sum of $152.67 per month, which payments have been regularly made. This action was continued from time to time over a period of several months, during which no further pleadings were filed by either party.
On March 9, 1942, the defendant took up a residence in Reno, Nevada, and on April 22, 1942, there filed a petition for divorce against the plaintiff in this action. Summons was served upon the plaintiff in Akron, and publication was had in a Reno newspaper. On May 25, 1942, the defendant was granted a divorce at Reno without contest. A day or two later he married, in Reno, a woman as his second wife who had been a resident of Chicago but a visitor in Akron, and who had gone to Reno soon after the defendant took up his residence in that city. A few days after their marriage, the defendant and his newly wedded wife returned to Akron and there took up their residence.
On June 11, 1942, the plaintiff, Ruth E. Slapp, filed an amended petition in her original action charging the defendant, Maurice F. Slapp, with gross neglect of duty, extreme cruelty and adultery. The prayer of the amended petition was for divorce, continued temporary alimony, and upon final hearing, permanent alimony. No additional deposit for costs was made.
A summons was issued upon this amended petition which, together with a copy of the amended petition, was duly served upon the defendant. A motion to strike the amended petition, claiming lack of jurisdiction, was filed by the defendant and was overruled.
On July 20, 1942, the defendant filed his answer alleging, among other things, that on May 25, 1942, the District Court of the state of Nevada, had granted him an absolute divorce. He prayed that the amended petition of the plaintiff, Ruth E. Slapp, be dismissed insofar as it prayed for a divorce and equitable relief incident thereto. The plaintiff filed her reply alleging that the defendant had never become, in good faith, a resident of Nevada, and that the alleged decree of divorce granted him in Nevada was fraudulently obtained and therefore void. She prayed that the decree be held null and void.
The trial judge heard evidence as to the respective property rights of the parties and as to the claimed aggressions of the defendant. The court found that the defendant had been guilty of extreme cruelty toward the plaintiff and that she was entitled to a divorce; that the decree of divorce procured by the defendant in the state of Nevada was null and void; and that all the property of the parties should be divided equally between them. A decree was entered accordingly and a motion for new trial was overruled.
An appeal by the defendant and a cross-appeal by the plaintiff were perfected to the Court of Appeals of Summit county, which court, applying the doctrine of the case of Williams v. North Carolina, 317 U.S. 287, 87 L.Ed., 189, 63 S.Ct., 207, 143 A. L. R., 1273, gave full faith and credit to the decree of divorce in Nevada, and reversed that part of the judgment of the Common Pleas Court which awarded a divorce to the plaintiff, Ruth E. Slapp. On the other hand, the Court of Appeals affirmed that part of the judgment of the Common Pleas Court which awarded an equal division of the property to the plaintiff.
A motion by the defendant to certify the record of the Court of Appeals was allowed by this court, as a result of which the case is now here for review.
Messrs. Bailey Bailey, for appellee.
Messrs. Schnee, Grimm Belden and Messrs. Slabaugh, Seiberling, Guinther Pflueger, for appellant.
The first question to be determined is. whether, when an action is filed for alimony alone and there is a compliance with Section 11981, General Code, as to security for costs, and the plaintiff thereafter files an amended petition for divorce and alimony but makes no further deposit for costs, the court has jurisdiction to consider the amended petition.
Section 11981, General Code, provides that "no clerk of a Court of Common Pleas shall receive or file a petition for divorce or alimony until the party named as plaintiff therein * * * makes prepayment or deposit with the clerk of such an amount as will cover the costs likely to accrue in the action, * * * or gives such security for the costs as in the judgment of the clerk is satisfactory * * *."
Defendant asserts that a claim for alimony and one for divorce, even when set out in the same action, constitute distinct and separate causes of action; that when a cause of action for divorce is subsequently brought into the action for alimony by amendment, it creates a new action requiring new service of process upon the defendant. This claim is predicated on the fact that the residence requirements and the statutory grounds for the two causes of action are different. The defendant then claims that when the plaintiff's petition for alimony was amended by including a cause of action for divorce, it was necessary that a new and additional deposit for costs be made as a prerequisite to jurisdiction.
In the opinion of the court, this does not follow. The required deposit for costs has no relation to the causes of action asserted in the petition or to the relief sought. A deposit was made by the plaintiff in the first instance upon the filing of her petition for alimony. That satisfied the requirement to that point. A deposit is made for the action, not for separate causes of action. The amount of a deposit is within the determination of the clerk and the presumption is that he performed his duty in this regard. A deposit, so far as it affects the defendant, is for his protection, and if the clerk does not require sufficient deposit, it rests with the defendant to bring the matter to the attention of the court by motion to increase the deposit. The Court of Appeals in its opinion in the instant case answers the contention when it says: "Had she [the plaintiff] originally filed a divorce and alimony action, the deposit made would have sufficed to conform to the statute. The accomplishment of that result by amendment did not change the situation."
Furthermore, the defendant in this case has not been prejudiced as to jurisdiction, in the final result, and he is not in position to complain. While plaintiff's amended petition for divorce and alimony was sustained by the trial court, the judgment was reversed and her petition as to the divorce feature was dismissed by the Court of Appeals. No.appeal has been taken by the plaintiff as to this issue and the judgment of the court denying the plaintiff a divorce has become final. The action, as it now stands, as a result of the judgment of the Court of Appeals, is one for alimony only and as to that, at least, the requirement for a deposit for costs was properly complied with.
A second contention of the defendant is that the trial court had no jurisdiction to hear this case as a "divorce case" and award the plaintiff a division of the defendant's property. The defendant claims that it is only when a divorce is granted because of the husband's aggression that the court shall allow the wife such alimony out of her husband's property (Section 11990, General Code); and that since the plaintiff was not entitled to a decree of divorce under her amended petition because a divorce had already been granted to the husband in another state, she could not be awarded permanent alimony or division of property.
Since the Court of Appeals found that the divorce granted to the defendant in Nevada was valid under the full faith and credit clause of the federal Constitution, which finding in the absence of appeal has become final, this court will assume for the purpose of the decision in this case that the decree was valid and severed the marital relationship of the parties. While Section 11990, General Code, does provide that when a divorce is granted because of the husband's aggression, alimony shall be granted to the wife, it does not specifically provide, as defendant contends, that only when a divorce is granted can alimony be awarded.
The statute in question contemplates a situation where a divorce and alimony are sought in the same action in a court having jurisdiction of both the parties and their property interests. The purpose of the limitation in the statute to the effect that when a divorce is granted because of the aggression of the husband, alimony may be granted, is the preservation of the marriage status if possible with the laudable hope that a reconciliation may be effected before a divorce is granted; and that the property of the parties should not be permanently divided until that hope has been destroyed by a decree of divorce.
In this case, the purpose of the statute to preserve the marriage status had already been defeated by the act of the husband in procuring a divorce in another state which did not have jurisdiction of the property rights of the parties. His procurement of the divorce satisfied the condition of the statute so far as the jurisdiction of the court to determine the property rights of the parties is concerned.
The record in this case shows clearly that there was sufficient aggression on the part of the defendant to entitle the plaintiff to a divorce, execept for the fact that the defendant had already procured a divorce in an uncontested action in another state. To apply to the statute the construction claimed by the defendant and to hold that the plaintiff is relegated to a decree of alimony for support and maintenance alone, thus depriving her of an equitable division of their property, while the defendant enjoys, on his own procurement, the status of a marriage dissolution, would be to make the statute (Sections 11990 and 11998, General Code), an instrument of fraud and injustice instead of one of justice and equity as was intended by its enactment. When the purpose of the rule fails, the rule itself ceases to apply. The situation here presented makes, this action the equivalent of an action for divorce and alimony, and the rule announced in Durham v. Durham, 104 Ohio St. 7, 135 N.E. 280, does not apply. We are of the opinion that the court did not err in granting a decree for permanent alimony.
The remaining issue relates to the power of the court to order certain property sold in order to divide the proceeds between the parties. It appears that the defendant, Slapp, is the owner of 1353 shares out of a total 3438 shares of preferred stock in The Akron Lamp Manufacturing Company, by whom he is employed.
Other shares of the stock are owned by other persons who are also employed by the same company. Some years ago all of these shareholders, including Slapp, entered into what they called a "Junior Executive Agreement" which provided that in the event any party to the agreement terminated his employment with the company, a subsidiary in which the remaining parties to the agreement are interested shall have the right to purchase his stock at a fixed price. Slapp's stock, together with that of the other parties to the agreement, is deposited with a custodian to insure the performance of the agreement. The court ordered that in the event the parties were unable to agree to a division of the property, a sale of Slapp's shares in the former company should be made in order to make a division of the property with the plaintiff. The other parties to the agreement above referred to were not made parties to this action.
The defendant claims that the court erred in this order and for that reason the decree should be reversed. An examination of the agreement discloses that it does not constitute a pledge of shares but an option with a condition attached which is not exercisable by the optionee until Slapp shall have become disconnected with the company by which the shares were issued. It is doubtful whether the agreement in question rendered the shares inalienable. No question is made in the pleadings on that issue. There may arise in connection with the attempted sale of this property questions which affect the optionee and a prospective purchaser of the stock, but the defendant is not interested in that issue and cannot litigate it in this action. There is nothing before this court at this time to require any determination as to such issue.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN BELL, WILLIAMS and TURNER JJ., concur.