Opinion
No. 24667
Decided November 21, 1934.
Court of Appeals — Jurisdiction — Divorce judgment may be reversed on weight of evidence — Section 6, Article IV, Constitution — Court cannot enter final judgment — Terms "modify" and "reverse" distinguishable — Granting divorce decree, refused by Common Pleas Court, not modification, when.
1. The Court of Appeals has jurisdiction, under Section 6 of Article IV of the state Constitution, to reverse a judgment granting or denying a divorce, on the ground that it is contrary to the weight of the evidence. ( Weeden v. Weeden, 116 Ohio St. 524, approved and followed.)
2. Where a Court of Appeals reverses a judgment of the Court of Common Pleas upon a consideration of the weight of the evidence, it is not authorized to render final judgment but must remand the case to the trial court.
3. The terms "modify" and "reverse", as used in Section 6 of Article IV of the state Constitution, are distinguishable.
4. The action of a Court of Appeals granting a divorce decree, which had been refused by the Court of Common Pleas, is not a modification but a reversal of the judgment under review, although questions of alimony and custody of child were incidentally involved.
ERROR to the Court of Appeals of Cuyahoga county.
Mrs. Campbell brought suit in the Court of Common Pleas of Cuyahoga county for divorce and alimony, and also for the custody and support of minor child, upon the grounds of gross neglect and extreme cruelty. The answer was a general denial, no affirmative relief being sought by the defendant.
Upon hearing, in which was introduced considerable evidence of the controversial character usually portrayed in the exposition of domestic discord in divorce courts, a divorce was refused, the court having found that "the allegations of plaintiff's petition, as relates to divorce, are not sustained by the evidence"; but alimony was awarded in the sum of $35 per month until further order of the court, also custody of the minor child, together with an allowance of $50 per month for his support. This was upon a finding that "defendant has been to some degree guilty of neglect of duty."
Both parties prosecuted error to the Court of Appeals. That court denied the petition in error of Mr. Campbell, but found that "there is error apparent upon the record in the proceedings of the Court of Common Pleas to the prejudice of said cross-petitioner [Mrs. Campbell] in so much of said judgment and decree of the Court of Common Pleas as finds said cross-petitioner not entitled to divorce, and in so much as the same fails to deal with the question of permanent alimony and division of property between the parties hereto, and in the rates of alimony and for support of the minor child * * *."
The court then found that the cross-petitioner in error "is entitled to a divorce * * * on the grounds of gross neglect of duty and extreme cruelty", and proceeded to order and decree "that the said marriage contract * * * be and the same is hereby dissolved", and remanded the case to the Court of Common Pleas to pass upon the questions of permanent alimony and division of property, as well as the award for "continuing alimony and support of said minor child."
The case comes into this court upon allowance of a motion for certification.
Mr. George E. Beach, for plaintiff in error.
Messrs. Smith, Olds, Thompson Harris, for defendant in error.
It is to be observed that the trial court found that "the allegations of plaintiff's petition, as relates to divorce, are not sustained by the evidence."
The primary question presented is whether the Court of Appeals, upon this record, is authorized to render a final judgment in such case, where the weight of the evidence is involved. That court found error apparent on the record wherein the trial court "finds said cross-petitioner not entitled to divorce", and then proceeded to consider the whole case as should the trial court, and as fully as it would a case properly before it upon appeal.
Without any further announced finding relative to the matter of divorce, the court ordered, adjudged and decreed a dissolution of the marriage contract.
Complete jurisdiction has been conferred upon the Court of Appeals to review and reverse a decree of divorce upon the ground that it is contrary to the weight of the evidence. That was definitely determined in the case of Weeden v. Weeden, 116 Ohio St. 524, 156 N.E. 908. There is no reason for any distinction upon the question of jurisdiction between that case and the instant case because of the fact that in the one the court had granted the divorce while in the other the court had denied the application for divorce, although the argument is very potent that in cases involving the marriage relation the opportunity of seeing and hearing the witnesses is of greater importance than in any other class of cases, and that a reviewing court should be precluded from disturbing the denial of a divorce by the trial court.
Our question is only whether the Court of Appeals was authorized in this case to render final judgment — granting a divorce.
The cross-petition in error filed in the Court of Appeals in this case sets out, among other assignments of error, that the "decree * * * is not sustained by sufficient evidence", and "is against the weight of the evidence."
The primary relief sought in this action was the dissolution of the marriage relation, the granting of divorce; all else was incidental thereto. In view of the disclosures by the record, it can not well be urged that, notwithstanding the recital, or rather lack of statement, of grounds of reversal in the journal entry, the final judgment of the court was based upon a finding that there was no conflict in the evidence or that the evidence disclosed by the record, as a matter of law, made a case warranting and requiring the issuance of a divorce decree.
As a practical proposition it is difficult to conceive of a contested divorce case in which it does not become necessary to weigh the evidence, or in which a decision thereof does not turn upon the weight of the evidence. We deem it sufficient to say that the record in this case is not such as to take it out of the general rule applicable to cases of domestic infelicity.
Having arrived at its conclusion, it was manifestly the duty of the Court of Appeals not to render final judgment awarding a divorce, but to remand the case to the Court of Common Pleas. Bridgeport Bank Co. v. Shadyside Coal Co., 121 Ohio St. 544, 170 N.E. 358.
The action taken was not a modification of the judgment as that term is used in Article IV, Section 6, of the state Constitution. "Modify" and "reverse", terms therein employed, are distinguishable. This order was in fact a reversal of the divorce decree, or rather the judgment wherein a decree of divorce was denied, the matter essentially in controversy, to which other questions were only incidental.
We do not, of course, enter upon a consideration of the weight of the evidence. Hence we cannot do otherwise than affirm the judgment of the court wherein it reverses the judgment of the Court of Common Pleas; but, for the reasons above stated, we do reverse the action of the Court of Appeals wherein it rendered final judgment upon the cross-petition in error instead of remanding the case for further consideration and action by the Court of Common Pleas.
In view of this order, other questions presented need not be discussed.
Judgment reversed.
WEYGANDT, C.J., STEPHENSON, JONES, BEVIS, ZIMMERMAN and WILKIN, JJ., concur.