Opinion
No. 35857
Decided June 17, 1959.
Divorce and alimony — Power to award alimony where divorce not granted — Wife seeking alimony in husband's divorce action — Asks specific performance of husband's agreement to convey realty — Alimony award without reference to agreement — Adjudication on agreement to convey — Pleading — Prior adjudication — Res judicata — Right to object waived, when.
1. Under Sections 3105.17 and 3105.18, Revised Code, a court has the same power in awarding alimony only that it does in awarding alimony where a divorce is granted.
2. Where a wife, in a divorce action instituted by her husband, seeks alimony only and also pleads an agreement by the husband to convey certain real property to her and asks the court to compel her husband to specifically perform that agreement, a decree, allowing her alimony in a certain amount each month but not mentioning said agreement or said real estate, constitutes an adjudication that such wife has no right to compel her husband to specifically perform that agreement to convey that real estate.
3. Where the only apparent purpose of pleading a prior adjudication is to establish such prior adjudication as an estoppel against a claim to the relief sought but such pleading is not sufficient to allege that such prior adjudication is a bar to such relief by way of res judicata, any right to object to a determination that such prior adjudication bars such relief, because not properly pleaded as a bar thereto, is waived if, without objection, evidence is admitted which fully establishes that such prior adjudication does represent an adjudication against a claim to such relief.
APPEAL from the Court of Appeals for Hamilton County.
Gussie Goetzel, herein referred to as the wife, instituted this action in the Common Pleas Court of Hamilton County in 1954 by the filing of a petition against her husband, Ralph Goetzel, alleging that in 1942, when the wife and her husband "were living separate and apart," they entered into a contract providing among other things for the transfer by the husband to the wife "by good and sufficient warranty deed" of certain real estate, herein referred to as the Arbor Place property, and that the wife "duly performed all the conditions of said contract on her part, and demanded a conveyance of the said real estate to her, but" her husband "refused to execute and deliver such conveyance." The wife asks for specific performance of that agreement to convey and also seeks an injunction against her husband interfering with her use and enjoyment of that real estate.
In his answer, the husband sets forth allegations which he contends made the agreement of 1942 void and of no effect, and, in a second defense, he alleges so far as pertinent:
"* * * On or about October 20, 1954 in case No. A-141460 in the Court of Common Pleas of Hamilton County, Ohio, wherein Ralph Goetzel is plaintiff and Gussie Goetzel is defendant, a decree of alimony was entered and provided that Ralph Goetzel pay Gussie Goetzel the sum of one hundred twenty five ($125) dollars per month; this decree was subsequently modified and said alimony payments were reduced to payments of one hundred ($100) dollars per month. At the time of the hearing of said case No. A-141460 the purported written agreement of June 13, 1942 was introduced into evidence and defendant claims at this time that the plaintiff herein is now estopped from making any further claim under said alleged agreement of June 13, 1942."
So far as pertinent to a consideration of the questions that must be considered, the 1942 agreement reads:
"* * * Whereas, the parties hereto are now temporarily separated and desire to establish some reasonable basis upon which they may live happily together; and
"Whereas, the said Ralph Goetzel desires to secure the said Gussie Goetzel from future want and to provide for her proper maintenance,
"Now, therefore, the parties * * * do hereby agree as follows:
"* * *
"(2) The said Ralph Goetzel agrees to transfer to the said Gussie Goetzel by good and sufficient warranty deed the property known as * * * Arbor Place * * * now standing in his name.
"* * *
"(7) In case of a divorce between the parties the said Gussie Goetzel agrees to accept the transfer of the said Arbor Place property and the assignment of income herein provided for, as a credit on any division of property or allowance for alimony, maintenance and support.
"(8) The said Gussie Goetzel agrees to execute a will devising said Arbor Place property to the said Ralph Goetzel and to maintain such will in full force and effect during her lifetime."
At the trial, the husband offered in evidence a petition for divorce filed by him against the wife in case No. A-141460 in the Common Pleas Court of Hamilton County, the answer and cross-petition and the amended answer and cross-petition filed by the wife in that case, the husband's answer to that amended cross-petition, an entry in that case signed by the wife withdrawing the prayer for divorce in that amended cross-petition, and the decrees of the court in that case awarding alimony to the wife.
The foregoing cross-petition reads in part:
"Defendant further states that in an agreement previously entered into between this plaintiff and defendant, the plaintiff, Ralph Goetzel, agreed to transfer to this defendant, Gussie Goetzel, his wife, by good and sufficient warranty deed, the real estate known as 2636 Arbor Place, Cincinnati, Ohio, now standing in his name, and which he has neglected to do.
"Wherefore, defendant prays that she may be divorced from this plaintiff * * * and that upon a hearing of this cause, the said alimony order may be made permanent; for attorney's fees and expenses; that she be awarded the real estate known as 2636 Arbor Place, Cincinnati, Ohio, the title to which is in the plaintiff's name at present, and for such other and further relief to which she may be entitled in the premises."
The amended cross-petition contains the same allegations except that the words "Norwood, Hamilton County" are substituted for "Cincinnati."
The husband's answer to the amended cross-petition reads in part:
"Plaintiff further says that he has neglected to transfer to the defendant herein, Gussie Goetzel, his wife, by good and sufficient warranty deed, the real estate known as 2636 Arbor Place, Norwood, Hamilton County, Ohio, now standing in his name, for the reason that the agreement allegedly entered into on the 13th day of June, 1942, between Ralph Goetzel and Gussie Goetzel, his wife, was caused by the fact that said defendant, Gussie Goetzel, intimidated, threatened, coerced, and mentally tormented him to satisfy her wishes as to the division of his property and further says that said alleged agreement lacks mutuality and is one-sided in favor of the defendant, Gussie Goetzel, a copy of which agreement is hereto attached.
"Plaintiff further says that while he has not as yet transferred the real estate to said defendant, nevertheless, she has, since the signing of said agreement, received all the income from said property, even though under the terms of said alleged agreement said defendant, Gussie Goetzel, as far as this plaintiff knows, has failed and neglected to execute a will devising said Arbor Place property to the said Ralph Goetzel, and to maintain such will in full force and effect during her lifetime.
"Wherefore, plaintiff prays that the court find that said alleged agreement of June 13, 1942 is null and void and find that same is of no effect and that said defendant's cross-petition be dismissed."
The record in the foregoing case contains the following entry signed by the wife:
"The defendant Gussie Goetzel herewith withdraws from her cross-petition her prayer for divorce and prays the court to grant her prayer for alimony and other relief."
So far as pertinent, the decree of alimony in that case reads:
"The court further finds that the defendant has proven all of the essential allegations of her amended cross-petition and that by reason thereof, defendant is entitled to permanent alimony and expenses, as prayed for in her amended cross-petition.
"It is, therefore, ordered, adjudged and decreed by the court that the plaintiff pay to the defendant, the sum of $125 per month * * * on the 20th day of each and every month.
"It is further ordered that the plaintiff pay to * * * attorneys for the defendant, the sum of $225 as expenses in this cause, and that the plaintiff pay the costs of this action. * * *" (Emphasis added.)
A subsequent decree made on motion of the husband provides for reduction of the $125 monthly payment to $100.
Neither decree mentions the Arbor Place property or the 1942 agreement.
The Common Pleas Court, by its judgment in the instant case, ordered the husband to convey the Arbor Place property to the wife.
The husband appealed from that judgment to the Court of Appeals on questions of law and fact. Pending that appeal, the husband died and the cause was revived in the name of his executrix.
The Court of Appeals rendered substantially the same judgment as had been rendered by the Common Pleas Court.
The cause is now before this court on an appeal by the executrix of the husband from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record.
Mr. Harry Falk and Mr. Samuel Plotnick, for appellee.
Mr. Harry Kasfir and Mr. Fred Weiland, for appellant.
As indicated in the foregoing statement of the case, the wife, in the prior divorce proceeding, not only sought alimony from the husband but she also pleaded in her cross-petition and amended cross-petition the 1942 agreement to convey the Arbor Place property, and she asked the court to order the husband to specifically perform that agreement. In the instant case she pleads the same agreement and asks for the same relief.
Although the wife did amend her amended cross-petition in the divorce proceeding so as to withdraw "her prayer for divorce" she then at that time again prayed the court to grant her "alimony and other relief."
Prior to the 1951 revisions in our statutes relating to divorce and alimony, there might have been some question whether a court, in awarding alimony only on a wife's cross-petition therefor, would have had any jurisdiction to specifically enforce an agreement by the husband to convey real estate. See Durham v. Durham, 104 Ohio St. 7, 135 N.E. 280; Materazzo v. Materazzo, 139 Ohio St. 36, 37 N.E.2d 967; and Marleau v. Marleau, 95 Ohio St. 162, 115 N.E. 1009.
However, now a divorce court does have jurisdiction in an action for alimony only to enforce a valid agreement by a husband to convey certain real estate to his wife. See Clark v. Clark, 165 Ohio St. 457, 136 N.E.2d 52; Gage v. Gage, 165 Ohio St. 462, 136 N.E.2d 56; Dennison v. Dennison, 165 Ohio St. 146, 134 N.E.2d 574; and Arbogast v. Arbogast, 165 Ohio St. 459, 136 N.E.2d 54. Sections 3105.17 and 3105.18, Revised Code, make it abudantly clear that the court has the same power in awarding alimony in an action for alimony only that it has in an action for divorce and alimony. Cf. former Sections 11997 and 11998, General Code.
Section 3105.18, Revised Code, provides:
"The Court of Common Pleas may allow alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either, at the time of the decree.
"Such alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, as the court deems equitable."
In the instant case, it is difficult to see how the court, in allowing alimony to the wife in the prior divorce proceeding, could have given, as that statute requires, "due regard to * * * the value of real * * * estate of * * * [the husband and the wife] at the time of the decree" if it had not taken into account who owned and was to own the Arbor Place property.
This statute would seem to not only authorize but perhaps require the court to make an equitable determination and adjudication of just such a controversy as the pleadings indicate as having existed between this husband and wife when the court fixed the alimony to be allowed the wife.
It is argued that, if the rights to the Arbor Place property were in issue in the divorce action, they were decided against the husband when his petition was dismissed. However, the petition alleges nothing with respect to the 1942 agreement or the Arbor Place property. The issues with respect to that agreement and that property were raised by the allegations of the amended cross-petition and the opposing allegations of the husband's answer to the latter. If the court, in the divorce proceeding, intended to leave any question open with respect to those issues, it expressed no intention to do so. It simply neglected to give the wife any order, such as that for which she prayed, for specific performance of the alleged agreement to convey and thereby in effect determined that she was not entitled to such specific performance. If the court erred in that respect, the remedy of the wife was a direct attack on that judgment by an appeal therefrom, — not a collateral attack thereon by questioning its validity in the instant case.
The wife contends that the adjudication involved in the alimony decree is not a bar to the relief that she seeks in the instant case because that adjudication has not been pleaded, and she cites in support of that contention Clark v. Baranowski, 111 Ohio St. 436, 145 N.E. 760; Meiss v. Gill, 44 Ohio St. 253, 258, 6 N.E. 656; and Lockwood v. Wildman, 13 Ohio, 430, 451.
In the present action, the second defense of the husband's answer to the plaintiff's petition in effect merely alleges that there was a decree of alimony in a specific case providing for payments of a certain amount per month by the husband to the wife, that at the hearing of that case the 1942 agreement was in evidence, and that the wife is now estopped from making any further claim under that agreement.
If we assume that these allegations would be insufficient to allege an adjudication in that divorce case of the wife's right to the relief sought in the instant case, the fact remains that, after they were properly identified, the foregoing petition, answer and cross-petition, amended answer and cross-petition, answer to amended cross-petition, entry, and decrees in the divorce case were all admitted in evidence in the instant case without objection.
It may be that, if the wife had objected to the admission of such evidence as to the prior adjudication, the trial court might properly have sustained that objection. However, the only apparent purpose of the second defense was to call attention to the prior alimony decree as an adjudication estopping the wife from relitigating any claim under the 1942 agreement. Hence, the wife could not reasonably claim that she did not appreciate the purpose of offering evidence as to that adjudication. Under the circumstances, we believe that the failure of the wife to object to admission of such evidence constituted a waiver of any right she had to require a more adequate pleading of that adjudication as a bar by way of res judicata.
In Massillon Savings Loan Co. v. Imperial Finance Co., 114 Ohio St. 523, 151 N.E. 645, it is said in the opinion by Jones, J., at page 531:
"No former adjudication was formally pleaded, but, upon the trial, evidence having been offered showing the illegal character of the transaction, the former adjudication was offered and testified to without objection on the part of the savings company. The case then assumed the aspect of relevant and material testimony offered by the plaintiff, without any objection on the part of the defendant, tending to show that the feature of illegality had been adjudicated in favor of plaintiff in a prior case. Had the defendant objected, the plaintiff might have amended its reply, pleading res adjudicata. Since no objection was made to the evidence of former adjudication, we think the evidence offered on that issue may be considered by the trial and reviewing courts under the principle announced in Hoffman v. Gordon Bro., 15 Ohio St. 211, 218, and Bacon v. Daniels, 37 Ohio St. 279."
In Harris v. Wallace Mfg. Co., 84 Ohio St. 104, 95 N.E. 559, it is said in the opinion by Shauck, J., at page 107:
"Respecting the evidence tending to show the Wallace company's disclaimer of interest in the later invention at the time of the purchase of its rights thereunder by the Harris company, counsel for the plaintiffs in error admit the general rule that when there is opportunity, the facts out of which an equitable estoppel is claimed to arise must be pleaded, and that in the present case they are not pleaded by the Harris company to which they would be availing but only by J. Harris to whom they would be unavailing because he has assigned his interest. But since in this state of the pleadings the evidence to establish an estoppel was admitted without objection, is it not entitled to be considered, notwithstanding the absence of such allegations as would make it competent?"
See also Larimore v. Wells, Admr., 29 Ohio St. 13, 17, annotation 120 A.L.R., 8, 87 et seq., 30A American Jurisprudence, 494, Section 441, 41 American Jurisprudence, 563, Section 394.
In view of our conclusion that the decree in the prior divorce action awarding alimony to the wife represents an adjudication that she is not entitled to specific performance of the 1942 agreement to convey the Arbor Place property, the judgment of the Court of Appeals must be reversed and final judgment must be rendered for appellant. Hence, it is not necessary to discuss the other legal questions raised by appellant.
Judgment reversed.
ZIMMERMAN, MATTHIAS, BELL, HERBERT and PRCK, JJ., concur.
WEYGANDT, C.J., dissents.