DocketNumber： No 2314
Citation Numbers： 16 Ohio Law. Abs. 375, 1933 Ohio Misc. LEXIS 1229
Judges： Barnes, Hornbeck, Kunkle
Filed Date： 11/14/1933
Status： Precedential
Modified Date： 10/18/2024
OPINION
The plaintiff failed absolutely in producing satisfactory corroborative evidence of any of her alleged grounds for divorce.
We think the court was absolutely right in refusing to grant a divorce to the plaintiff, and the evidence further adequately supporting the conclusion of the trial court that her leaving defendant was without just cause, she would riot be entitled to an allowance for alimony, and this was the determination of the trial court.
Now, taking up and considering the judgment of the court granting a divorce to the defendant on the ground of gross neglect of duty, we find ourselves in opposition lo the trial court on this finding and judgment. The trial court determined that the defendant had totally failed to produce any evidence supporting his charge of extreme cruelty and on this finding we are in thorough accord. The most that the evidence established on defendant’s behalf was a willful absence on the part of the plaintiff, but not being for three years, it could not be and was not set out as a ground of complaint. The trial court found that the wailful absence was a gross neglect of duly. In this we think all Ohio authorities are at variance with the court’s conclusion. Tire court said, and it is set out in the petition and argued in the briefs, that the circumstances of the willful absence were such as to constitute a gross neglect of duty. The attending circumstance referred to is the fact that the plaintiff left the defendant without just cause and further that he was afflicted with ¡he malady of epilepsy and thereby needed her attention, comfort and ministration. We concede the legal proposition that circumstances attending and coupled with a desertion or wilful absence may constitute a gross neglect of duty, but the re
In the instant case, as we read the record, the defendant was not particularly disturbed by reason of his wife’s desertion. He was not at all a demonstrative individual. The evidence discloses that on occasions when he was away from his wife months at a time he never wrote a letter to her and she wrote very few to him. Her dereliction in this particular should be excluded for the reason that he did not answer her letters. He was perfectly contented in the fact that his mother conducted the correspondence with his wife and he thereby would hear from her from time to time. His method of compensating for this dereliction was to send at regular and frequent periods very liberal allowances. All through the record there is a total absence of evidence showing any particular pleasure or comfort on the part of either in being in the association one with the other.
Searching the record as we have, we are unable to find sufficient evidence to sustain the granting of a divorce to the defendant on the ground of gross neglect of duty. With regret we find ourselves compelled to reverse the order granting the divorce to the defendant.
Upon the reversal there remains no authority for an order for division of property, and the judgment of the court below will also be reversed in this particular. However. if we had power to make division of property, we would have some difficulty under state of record in not increasing allowance to wife.
In the brief of counsel for defendant in error we find the statement made that the defendant has complied with the order of the court below in making transfer of'the undivided one-half interest in the home in California. We do not understand that we would have any authority to make any orders relative thereto, if such compliance has been made. .
We remand the case to the Court of Common Pleas, and costs will be adjudged against the defendant. Exceptions will be allowed to both parties if desired.