Miller v. Miller

Richards, J.

(of the Sixth Appellate District, sitting in place of Patterson, J.). The action is one in divorce brought by Elsie N. Miller, on the ground that the defendant is imprisoned in the penitentiary of the state of Ohio. The common pleas court refused to grant a divorce, and this proceeding in error is brought to secure a reversal of that judgment.

In addition to charging that the defendant is imprisoned in the penitentiary, the petition avers that the defendant left and abandoned plaintiff, and has ever since failed, neglected and refused to contribute to the support of plaintiff or their child. While this latter charge may be broad enough to amount to a charge of gross neglect of duty, yet no evidence was offered under that aspect of the case.

The evidence shows that the plaintiff and defendant were first married on May 2, 1922, and that about six months thereafter he was convicted and sentenced to the Ohio penitentiary on the charge of bigamy. During the time that he was confined in the penitentiary the plaintiff secured a divorce from him on the ground of such imprisonment.

After being confined in the penitentiary about a year he was released on parole, and in a very short time after his release the parties were again married, the second marriage taking place on November 23, 1923. In December, 1923, his parole was revoked for some reason not disclosed by the record, and he was again confined in the penitentiary under the original sentence of bigamy. In October, 1924, a child was born to the parties.

The plaintiff now asks for a second divorce from the defendant on the ground of imprisonment in the penitentiary, under the same sentence for which she was heretofore granted a divorce from him. Section 11979, General Code, provides that a divorce may be granted on the ground of imprisonment in a penitentiary under sentence thereto. It does not, however, provide that two divorces may be granted for imprisonment under the same sentence. The fact that he was temporarily released on parole is unimportant, because the plaintiff was bound to know that his parole might at any time be revoked and the defendant again imprisoned under the same sentence. The imprisonment being under the same sentence must be treated by the court as the same imprisonment for which a divorce was originally granted, interrupted only by a temporary parole. By her second marriage she must be held to have condoned the bigamy and ensuing imprisonment. Any other construction would permit a woman, who was divorced from her husband on the ground of imprisonment in a penitentiary, to visit the penitentiary and remarry him, and then apply the next day for a second divorce on the ground of imprisonment in the penitentiary. Such a result would make a mockery of the law.

The trial judge committed no error in refusing a second divorce for the same imprisonment in the penitentiary.

Judgment affirmed.

Houck and Shields, JJ., concur.