Downing v. Downing , 18 Ohio App. 223 ( 1923 )

By the Court.

Plaintiff in error here, Helen Downing, plaintiff below, filed her petition alleging gross neglect of duty and praying “that she may be divorced from the said defendant and restored to her maiden name of Helen E. Stratton, and for such other and further relief as she may be entitled to.”

The defendant was personally served, but made default.

The trial court on June 2, 1922, rendered a decree of divorce, and “ordered, adjudged and decreed that the plaintiff be allowed the sum of two hundred dollars as alimony herein, payable five dollars per week.”

On June 29, 1922, the defendant filed a motion • to set aside the judgment for alimony “for the reason that the court was without jurisdiction to render the same, no demand therefor having been made in the petition.”

On November 25,1922, another judge of the same court sustained the motion and decreed that the judgment for alimony be set aside and held for naught. (Downing v. Downing, 24 N. P. [N. S.], 241.)

If the action of the court in setting aside the decree was predicated upon the ground set forth in the motion, to the effect that the court was without jurisdiction because no claim for alimony was asserted in the petition, the action was unauthorized. Alimony is an incident to the divorce, and a claim therefor need not be pleaded if the divorce is granted. 19 Corpus Juris, 283; 1 Ruling Case Law, 922; Julier v. Julier, 62 Ohio St., 90. If, however, the action was predicated on the doctrine that no showing’ was made that defendant owned property, the action of the court was, equally unauthorized. Lape v. Lape, 99 Ohio St., 143.

Judgment reversed and motion to set aside decree for alimony overruled.

Middleton, Mauck and Satre, JJ., concur. Judges of the Fourth Appellate District, sitting in place of Judges Allread, Ferneding and Kunkle, of the Second Appellate District.