Opinion
Decided March 17, 1932.
Divorce — Error proceedings barred by remarriage with another.
A party against whom a decree of divorce has been granted cannot, after his subsequent remarriage with another, prosecute error, since by his remarriage he admits the legality of the divorce proceedings. Having accepted the benefits of the decree he must bear its burdens.
ERROR: Court of Appeals for Gallia county.
Mr. Henry W. Cherrington and Mr. Hollis C. Johnston, for plaintiff in error.
Mr. R.M. Switzer, for defendant in error.
In the court below the plaintiff in error, Amos E. Swisher, was plaintiff, and the defendant in error, Rossela Swisher, was defendant. The plaintiff brought his action for divorce against the defendant on the grounds of extreme cruelty and gross neglect of duty. He alleged that a separation agreement had been entered into after the filing of the suit and asked that the property and alimony rights agreed upon between the parties in that agreement be approved. An answer was filed by the defendant admitting the marriage, but denying all the other allegations contained in the amended petition, and alleging that the separation agreement was procured by fraud and duress, and she asked that she be awarded reasonable and proper alimony. Trial was had and the case taken under consideration by the court. After the trial the court permitted the defendant to file an amended answer and cross-petition, alleging a cause for divorce. The court then granted the defendant a divorce and awarded her alimony in the sum of five thousand dollars. The plaintiff seeks to reverse the judgment on the ground of several alleged errors.
During the oral argument of this case in this court it appeared by the statements of counsel in open court that since the decree of divorce was granted by the trial court the plaintiff has married another. Under these circumstances it would appear that the plaintiff has waived his right to prosecute error.
2 Ohio Jurisprudence, 588, states the rule, as follows: "A proceeding in error may be dismissed because the plaintiff in error has waived his right to maintain it by accepting the judgment below."
In Buchanan, Jr., v. Modern Development Co., 82 Ohio St. 449, 92 N.E. 1110, it is stated: "Petition in error and cross-petition in error dismissed on the ground that the petitioner and cross-petitioner have waived error by accepting the judgment."
This is the rule that is recognized by the courts, 3 Corpus Juris, 665.
The general rule applies to proceedings in error in divorce cases. It is stated in 9 Ruling Case Law, 467, Section 280, as follows: "It is a general rule that a party after accepting the benefits of a judgment or decree waives his right to have it reviewed on appeal or writ of error, and this principle has been applied to appeals in divorce cases. Thus it has been held that a party against whom a decree of divorce has been granted cannot, after his subsequent marriage with another, prosecute an appeal, since by his remarriage after the divorce he admits the legality of the divorce proceedings and accepts the benefit of the divorce to the extent that it enables him to remarry."
The rule is thus stated in 19 Corpus Juris, 188: "It has generally been held that the right to have a decree reviewed on appeal or writ of error is waived if the party aggrieved thereby remarries."
The law seems to be well settled that a party cannot be relieved from a judgment of divorce after he has used the privileges of the judgment. Having accepted the benefits of the decree, he must bear its burdens. Garner v. Garner, 38 Ind. 139; Rariden v. Rariden, 33 Ind. App. 284, 70 N.E. 398, 104 Am. St. Rep., 252.
Courts do not look with favor upon the conduct of the plaintiff in attempting to attack the decree by virtue of which he was permitted to remarry, and when facts of this character appear the court for reasons of public policy will sua sponte dismiss the proceeding in error.
Petition in error dismissed.
MAUCK, P.J., and MIDDLETON, J., concur.