Arnold v. Arnold , 1 Ohio Law. Abs. 670 ( 1923 )

VICKERY, P. J.:

Epitomized Opinion

Action for divorce. Defendant, the husband, filet a cross-petition for divorce, which contained ar allegation in substance as follows:

Defendant says that plaintiff has been guilty o: gross neglect of duty and extreme cruelty towart defendant in that she has consorted with divers ant sundry men and has lived in defendant’s house witl people of ill repute and that she has shown marked affection for one, Richard Roe who on certain oel casions has stayed at defendart’s house all night. I

Plaintiff moved to strike this allegation out o| the petition. ' The Common Pleas overruled th| motion and granted defendant a divorce. Plaintiff brought error proceedings in this court. Held: I

Attorneys — Calfee, Fogg & White, for plaintiff; Tolies, Hogsett, Ginn & Morley,, for defendant.

The motion should have been granted. The facts stated did not amount to extreme cruelty because they occurred, if at all, after defandant had separated from plaintiff and was no longer living with her. The allegation did not charge gross neglect of duty. It charged adultery, if anything, and adultery was not proved. There was error, .prejudicial to plaintiff, in the failure to strike out the allegation, and in granting the divorce on the ground of gross neglect of duty under the chaige set forth. Reversed and remanded.