Glimcher v. Glimcher , 29 Ohio App. 2d 55 ( 1971 )

I must dissent from the majority decision of my colleagues in that I feel there was a substantial amount of evidence presented by the plaintiff, upon which the trial court could legally base its judgment of divorce for the plaintiff on the ground of gross neglect of duty of the defendant.

The testimony of the plaintiff's brother sets forth the fact that the defendant called the jointly shared office of the brothers on many occasions. Plaintiff's brother stated such calls to be a minimum of ten per day, and that some were of the "call and hang up" variety.

In addition, the defendant presented herself at the office on a number of occasions, apparently upsetting the office routine in the process. It was testified that on one such occasion the defendant stormed into the office and proceeded to question her husband's ancestry, apparently within the hearing of those in the office.

All of such activity on the part of the defendant occasioned the plaintiff being removed from this rent-free office which was being provided by his brother in addition to phone service, office supplies, furnishings and typing service.

The record discloses also that on another occasion while the parties hereto were attending the Cedar Point recreation area, the defendant spoke profanely to her husband in a most unwifely manner, such profane statements being overheard by the couple accompanying the parties.

There also was evidence of rather constant indications or accusations by the defendant of mistrust of the plaintiff, which accusations were not shown to be well founded.

R. C. 3103.01 provides that "husband and wife contract towards each other obligations of mutual respect, fidelity, and support." In reading the record, I found that the plaintiff presented proof relative to a notable absence of respect for this plaintiff by the defendant.

As set forth in Weinstein v. Weinstein (1962), 90 Ohio Law Abs. 199, a large measure of discretion is granted to the trial court to determine the sufficiency of the evidence requisite to granting a divorce, and a reviewing court passing on an assignment of error that a decree of divorce is against the manifest weight of the evidence is warranted in setting aside the decree only when the record does not disclose any substantial evidence which reasonably supports the judgment.

As stated in the third paragraph of the headnotes of Smith v.Smith (1933), 15 Ohio Law Abs. 536:

"A reviewing court in passing upon the action of the trial court in a divorce case cannot disturb that action unless the judgment is so manifestly against the weight of evidence as to shock the conscience."

In reviewing the record, I believe that such record discloses substantial evidence which reasonably supports the judgment of the trial court on the issue of gross neglect of duty. The judgment should be affirmed.