Materazzo v. Materazzo , 139 Ohio St. 36 ( 1941 )

The record in this case presents a single question for determination: May a trial court, in a proceeding involving a claim for alimony only, make an award to the wife which is to be determinative of all her rights to her husband's property?

The parties are still married, and while that status continues there is always the possibility of a termination of the separation. The court is therefore without power to finally determine the property rights of the parties. This rule is established in Ohio by the decision of this court in the case of Durham v. Durham, 104 Ohio St. 7, 135 N.E. 280. The syllabus reads as follows:

"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 judgment of the Court of Appeals was therefore erroneous and is hereby reversed, and the cause is remanded to the Court of Common Pleas for further proceedings.

Judgment reversed and cause remanded.

WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART, ZIMMERMAN and BETTMAN, JJ., concur.