Fredericks v. Fredericks

146 N.E.2d 153, 76 Ohio Law. Abs. 296, 1956 Ohio App. LEXIS 846

• Court: Ohio Court of Appeals
• Decided: June 15, 1956
• Docket: No. 738
• Status: Published

Opinions

OPINION

By NICHOLS, J.

In this divorce case instituted in the Court of Common Pleas of Columbiana County by John W. Fredericks against Elizabeth Gay Fred-ericks and certified by that court to the Juvenile Court of Columbiana County (the custody of children being involved), (Sec. 3109.06 R. C.), the defendant, Elizabeth Gay Fredericks, filed her answer and cross petition seeking divorce, custody of the minor children and alimony. Thereafter John W. Fredericks withdrew his petition.

In the Juvenile Court one Kathryn Day filed a cross-petition in which she alleged that she had loaned money to the husband and wife and had advanced money for their benefit for the purpose, among others, of buying furniture, and Kathryn Day prayed the Juvenile Court to award her the possession of such furniture or in the alternative to award her a judgment in the amount of $1,984.00, the amount of money she claimed to have advanced for the benefit of the husband and wife.

The Juvenile Court granted a divorce to the wife on the ground of gross neglect of duty, awarded custody of the minor children to the wife, and ordered the children placed in a home subject to visitation by the husband and wife at separate times.

The Juvenile Court also awarded to the wife as alimony all of the household goods and furniture, being the same furniture for which Kathryn Day had furnished the money.

The Juvenile Court also made the following order:—

“Judgment is rendered in the amount of $1984.00 plus interest in favor of Kathryn Day on her cross-petition, and that the plaintiff, John W. Fredericks, is hereby ordered to assume and pay the same and to save the said Elizabeth Gay Fredericks harmless from the payment thereof.”

By reason thereof the wife subsequently filed her motion to cite John W. Fredericks for contempt, alleging as ground therefor that the husband had failed to pay the “judgment” and save her harmless, as ordered by the Juvenile Court.

The husband answered such contempt proceedings by alleging that he had gone into bankruptcy subsequent to the order of the Juvenile Court and had been discharged from the debt described as a judgment.

The Juvenile Court held that the discharge in bankruptcy did not release John W. Fredericks from the obligation to pay that judgment, basing his decision upon the finding that the order was an order for the payment of alimony and not dischargeable in bankruptcy. However, the Juvenile Court dismissed the motion for contempt and discharged the plaintiff for the following reasons:—

“However, no evidence was introduced nor was there any evidence before this court that any attempt has been made to collect said judgment from the defendant or that she has been called upon to pay said judgment. In the absence of such evidence, there is no contempt of court, and until such time as the defendant has been ‘harmed’ and so can request the court to enforce its order, the plaintiff can not be in contempt of court.

“The motion of the defendant to cite the plaintiff for contempt of court is therefore discharged.”

Since the Juvenile Court found John W. Fredericks not guilty of any contempt of that court for the reasons stated, this court concludes there is no basis for disturbing that finding and the same is therefore affirmed.

GRIFFITH, J, concurs. PHILLIPS, PJ, concurs in judgment.