Opinion
No. 10035.
1946-09-12
JAMES v. JANES et al.
Bostwick & Bostwick, of Chardan, and Hauxhurst, Inglis, Sharp & Cull, of Cleveland, for plaintiff Elizabeth Hanna Janes. Mark Sperry, of Chardan, John Orgill and Payer, Bleiweiss & Mollison, all of Cleveland, for defendant Lester B. Janes.
Action by Elizabeth Hanna Janes against Lester B. Janes and others for alimony and for specific performance of an agreement, wherein a restraining order was granted.
Decree for plaintiff in accordance with opinion.Bostwick & Bostwick, of Chardan, and Hauxhurst, Inglis, Sharp & Cull, of Cleveland, for plaintiff Elizabeth Hanna Janes. Mark Sperry, of Chardan, John Orgill and Payer, Bleiweiss & Mollison, all of Cleveland, for defendant Lester B. Janes.
GRIFFITH, Judge.
The plaintiff Elizabeth Janes instituted this action for alimony only against her husband and the defendant Lester B. Janes.
The parties were married on October 23, 1920.
The plaintiff gives her age as forty-six, and the defendant gives his age as forty-seven years.
One child was born, to-wit: Lila Janes-Meister, age twenty-five; who is now married and living with her mother in the home on Fairmount Boulevard, in Novelty, Ohio, while her husband is in military service.
The plaintiff charges that her husband has been guilty of gross neglect of duty; in that he has failed to provide adequately for the family support; that he has treated her with gross disrespect, used violence and vile language toward her, to her great humiliation; that he has, for more than three years past, been guilty of habitual drunkenness, and wasted a large portion of the income from a substantial estate left him by his grandmother, and a large portion of another estate left to him by a deceased brother; that he has repeatedly absented himself from the home on drunken sprees, for long periods of time, without advising her of his whereabouts; and that, on February 9, 1945, he abandoned her without cause, and that she had no knowledge of his whereabouts; and that she has been without sufficient funds; that he habitually gambles large sums of money, and consorts with gamblers and immoral persons, and has been dissipating the assets at a rate which will leave him and the family penniless if continued; and she prays for an order requiring the defendant Lester B. Janes to pay her alimony for her support and maintenance.
The defendant denies that he has been guilty of gross neglect of duty, habitual drunkenness, and all other matters of misconduct on his part charged by the plaintiff; and says he has provided well for the plaintiff since their marriage; and prays for a dismissal of the restraining order issued by the Court.
The petition was filed in this Court on September 20, 1945; and the matter came on for hearing on the merits on March 28, 1946; and when the case was called for trial counsel on both sides requested of the Court time for discussion, in the hopes of settling their differences by agreement.
After a large portion of the day was consumed in discussion between counsel and clients, it appears that the court heard nothing; and the plaintiff claims that an agreement was entered into by the plaintiff and the defendant, which constituted a complete accord of all the matters in controversy.
A Journal Entry was drafted that day (Exhibit A), and approved by all attorneys for the plaintiff, and all attorneys for the defendant; but the Journal was not submitted to the Trial Judge. It was transmitted to the Trust Officer of the Cleveland Trust Company having charge of the two trusts of which the defendant was the beneficiary.
While the Journal Entry was in the office of the Cleveland Trust Company, several days later the defendant called and examined it; and repudiated it.
Thereafter a Supplemental Petition was filed by the plaintiff, setting up the settlement agreement; and praying in the alternative as prayed for in the plaintiff's petition, or for specific performance of the agreement as evidenced by the said Journal Entry.
The defendant, in answer to this Supplemental Petition, denied he ever made or executed any agreement; and said that when he, for the first time, saw a copy of it in the office of the Cleveland Trust Company, he immediately rejected it. This written Journal, drafted by the attorneys on March 28, 1946, at Chardon, was not signed by the plaintiff personally; nor was it signed by the defendant personally.
The terms and conditions of this Journal Entry were discussed in Chambers with the Presiding Judge, the Honorable Judge Sperry, that afternoon; but it was never submitted to the Court, nor was it left with the Court.
The Court inclines to the view that there is some question as to a meeting of the minds of Elizabeth Hanna Janes and Lester B. Janes on all the terms and conditions of the written agreement; and is, therefore, unable to find that it is a voluntary settlement agreement binding the parties to the terms therein contained.
The Court, therefore, proposed to deal with the question of alimony in this case unimpeded and uninfluenced by any written agreement; and guided by the well established rules of law, in the determination of alimony in such cases.
The Court may, in fixing the alimony, acquaint itself with the wife's pecuniary condition, her needs, his means and income and present ability to pay; but the Court may not abrogate the Statute.
The issues of fact in this case are few, and in no wise complicated.
Elizabeth and Lester Janes are the owners of the legal title to the homestead property on Fairmount Boulevard, in Novelty, Ohio; of an estimated value of around $40,000 competely furnished and unencumbered except with a mortgage of $18,000.
There are stocks, bonds and other securities of the value of $40,000 belonging to Lester Janes in a safety deposit box in The Morris Plan Bank in Cleveland, on which this Court has issued a restraining order against Lester Janes, enjoining him from entering the box or removing any of the securities. These securities are what remains of the $60,000 worth of paper which his brother Edwin left him, free from any provisions against alienation. Within a year and a half after he received the securities, by his various expenditures, he had reduced them to $40,000.
In 1945 he received $1,580 income from these securities.
There was $106,000 of securities for his benefit in the Kate H. Babcock Trust No. 5, from which he received, during the year 1945, after all deductions, a net cash to him of at least $4,760 earned income.
Hw also received a substantial sum of approximately $2,055 from the sale of capital assets of this trust, that year.
The Trust Instrument provides that these securities shall be for his sole use and benefit during his lifetime; with power to the trustee to use both principal and income for his needs.
There is the Edwin Janes Trust of $50,000, the income of which is distributed, in equal parts, to Lester Janes and his sister Virginia. The entire principal is to be distributed to them at the end of twenty-five years from the decease of the donor. Edwin Janes died in 1942.
From this trust he received, during the year 1945, at least $693 net to him; purely earned income.
There is another trust: The Hasbrouck Trust, of $240,000, which his aunt has established. She is now past seventy years of age. Upon her death Lester Janes will come into the enjoyment of a one-fourth interest in this trust. In that Trust Instrument, as in the Kate Babcock Trust, there is the right given to the trustee to use the principal, if necessary, for the needs of the beneficiary.
All there of these Trust Estates are immune from attachment, or Court order.
Mr. Janes has no employment, and has had none for the past three years.
Mrs. Janes has her one-half of the equity of the homestead property; her interest in the furnishings of that home; and securities which net her but $90 per year; and she is now forty-seven years of age; and has given her past twenty-five years to the duties of a wife and mother; she is untrained for anything else.
Following a long series of grievances, the defendant left the domicile in February 1945, and went to live at the Hollenden Hotel.
Since that date he has spent over $4,900 at this Hotel alone; notwithstanding the fact that, during this same period of time, he was in California at least eight weeks, and several weeks in camp in Canada.
Without reviewing at length the testimony pro and con, respecting the misconduct of the defendant, as charged in the petition, and especially his conduct during the past three years, the Court finds, by the overwhelming preponderance of the evidence, misconduct on the part of this erring husband, warranting the right of this plaintiff to recover in this action.
The Court, after full consideration, finds that the defendant is guilty of gross neglect of duty, and habitual drunkenness, as charged in the petition, and that the plaintiff is entitled to an order for alimony.
The issues of law in this case require a careful analysis before the order is made. The relief granted must come squarely within the four corners of Section 11998, General Code. The pertinent portion of the Statute is as follows: ‘Upon satisfactory proof of any of the charges in the petition, the court shall * * * give judgment in favor of the wife for such alimony out of her husband's property as is equitable, which may be allowed to her in real or personal property, or both, or in money, payable either in gross or by installments.’
Does this Statute authorize the Court to make an award to the wife out of her husband's real property?
The defendant urges that no part of the husband's real property may be awarded to the wife in an action for alimony only.
Does the Statute authorize the Court to make an award to the wife in a lump sum in gross out of her husband's personal property?
The defendant urges that the Court has no jurisdiction to do so. In support of this decision he cites the following cases: Gilbert v. Gilbert, 83 Ohio St. 265, 94 N.E. 421, 35 L.R.A.,N.S., 521; Marleau v. Marleau, 95 Ohio St. 162, 115 N.E. 1009;Durham v. Durham, 104 Ohio St. 7, 135 N.E. 280;Daily v. Daily, 48 Ohio App. 83, 192 N.E. 287;Rosansky v. Rosansky, 1 O.L.A. 234;Bingmer v. Bingmer, 67 N.E.2d 102.
In the Durham case the Court held: ‘Upon petition of the wife for alimony alone, the trial court is not authorized to make an equitable division of the husband's property, but is confined by section 11998, General Code, to making an award as alimony for her maintenance and support during separation.’
The Daily case followed the law laid down in the Durham case, and held:
‘1. In proceeding for alimony alone, court possesses no equity power, but is controlled by statute regarding proceedings on petition for alimony alone (General Code § 11998).
‘2. In suit for alimony only, alimony comprehends an allowance for purpose of maintenance and means of support during separation, and not a division of property.’
The firmly established law of Ohio is that the trial Court, in an action for alimony alone, is not authorized to make ‘An equitable division’ of the husband's property. The Legislators, in the use of the word ‘equitable’ in Section 11998, used that word in an entirely different sense and meaning than the Court used the same word in the Durham case.
The word ‘equitable’ in the Statute means ‘fair, just and reasonable under all the circumstances.’ The words ‘equitable division’, as used in the Durham case, mean such a division of property as would require the exercise of the equity powers of the Court rather than the jurisdiction at law authorized under Section 11998, G.C.
The Court said: ‘This court is committed to the principle that in divorce and alimony proceedings the court in awarding alimony is controlled by statute, and is not authorized to exercise general equity powers.’
This much is plain that this Court, in construing the Statute, may not make an equitable division of the husband's property. It is confined to making an award as alimony for her maintenance and support during separation, which may be allowed to her in real or personal property, or both, or in money payable either in gross or by installments.
This Court is only authorized to exercise such power as the Statute expressly gives, and such as is necessary to make its orders and decrees effective. Alimony proceedings are not chancery. For this reason the Court refuses to make an equitable division of Lester B. Janes' property, and confines itself to making an award to her as alimony for her maintenance and support during separation.
The Court awards to this plaintiff, as her reasonable alimony, a lump sum in gross of one-half of the securities in the safety deposit box at the Morris Plan Bank of Cleveland; the use of the homestead property on Fairmount Boulevard, in Novelty, Ohio, for her natural life, with the duty and obligation on the defendant to pay the real estate taxes and assessments, if any; premiums on the insurance on the buildings, and to continue to make the payments of principal and interest on the mortgage now held by The Cleveland Trust Company, as the same come due; the household goods and furnishings, except defendant's personal effects; and the sum of $150 per month, payable on the 15th day of each calendar month, beginning September 15, 1946, during her lifetime, or until further order of this Court.
For the purpose of carrying into effect the order herein made, the restraining order issued on September 20, 1945, is vacated.
A decree may be prepared in accordance with this finding, and the costs of this suit, including services of Official Court Reporter, are adjudged against the defendant.
Exceptions will be noted on behalf of both parties, and an appeal bond fixed in the sum of $300.