Mallow v. Mallow

84 N.E.2d 236, 84 Ohio App. 89, 53 Ohio Law. Abs. 31, 39 Ohio Op. 115, 1948 Ohio App. LEXIS 758

• Court: Ohio Court of Appeals
• Decided: March 22, 1948
• Docket: 6937
• Status: Published

Opinion

OPINION

By MATTHEWS, PJ.:

This is an appeal from an order modifying a final judgment for alimony payable in instalments. The divorce was granted to the wife because of the aggression of the husband and he was ordered to pay $11.00 per week. The order appealed from reduced the alimony to $8.00 per week.

The bill of exceptions discloses that no substantia] change had taken place in the earning capacity and financial condition of the husband since the award of $11.00 per week was made. Neither had there been any substantia] change in the situation of the wife. The only change materially affecting the husband’s ability to pay results from his subsequent remarriage.

The appeal, therefore, presents the question of whether the remarriage authorizes the reduction of the award.

By the great weight of the authorities, the remarriage of the husband furnishes no basis for a change in an alimony decree theretofore entered. Myers v Myers, 30 A. L. R., (Utah) 74; Cropsey v. Cropsey, 64 A. L. R. (N. J.) 1266; Kirkbride v Kirkbride, 112 A. L. R. (N. Y.) 243, at 246, et seq., and the Ohio case of Nash v Nash, 77 Oh Ap, 155, the second paragraph of the syllabus to which is as follows:

“The changes in the circumstances of the parties that may be considered in such a request for modification must be materia] and not purposely brought about by the complaining party, and must be considered on the basis that the judgment sought to be modified was proper when made.”

As no change in conditions justifying a modification of the alimony was shown, the order appealed from is reversed.

MATTHEWS, PJ, ROSS & HILDEBRANT, JJ, concur.