Parker v. Parker

4 Ohio Cir. Dec. 539

Opinion

Baldwin, J.

■ This is a petition in error to reverse a so-called judgment for alimony in a suit for divorce. The one ground upon which it is sought to be reversed is that no alimony or other relief other than divorce was asked in the petition. Petitioner asked “that the marriage contract heretofore existing between said parties be set aside, annulled and held for naught, and that she be restored to all her rights as a feme sole.”

There was one child, the fruit of this marriage, and the court gave the plaintiff the care and custody of the minor child until the further order of the court, and decreed that defendant “pay plaintiff the sum of $15.00 per month for the support of their said minor child, until said daughter shall arrive at the age of eighteen years.” This was payable monthly, and plaintiff was cut off from her claim of dower.

Section 5689, Rev. Stat., provide for what causes divorce may be granted. Section 5690, Rev. Stat., provide where actions for divorce or for alimony may be brought. Section 5696, Rev. Stat., provide that “the court shall make such order for the disposition, care and maintenance of the children, if there are any, as is just and reasonable.” Section 5699, Rev. Stat., provide for right of wife, when divorce is granted for aggression of the ,husband, which is the case before us. It provides, as far as it is necessary to recite, that: “When a divorce is granted by reason of the aggression of the husband, the wife shall, by force of the judgment of divorce, be restored to all her lands, tenements and hereditaments not previously disposed of, and if she so desire, the court shall restore her to any name she had before such marriage; she shall be allowed such alimony] out of her husband’s real and personal property as the court deems reasonable,] having due regard to the property which came to him by marriage, and the value of his real and personal estate at the time of the divorce,” etc.

Kerruish, Chapman & Kerruish, for plaintiff in error. F. B. Skeels, for defendant in error.

Sections 5696 and 5699, by their terms, apply to all cases “where a divorce is granted by reason of the aggression of the husband, ’ ’ providing some results which shall follow “by force of the judgment of divorce,” others to be allowed, by the court. ‘

The legislature, apparently, intended a wise power on the part of the court! to do what is deemed “reasonable,” without-too technical an adherence to the rules of pleading in ordinary civil cases.

This case itself shows the value of such discretion. There was a necessity to provide for the custody and care bf the child, and excellent reason to provide for its support, a provision, indeed, which might be for the benefit of the husband, as well as the wife. See Pretzinger v. Pretzinger, 45 O. S., 452.

We think the court had power to make the allowance, although it was not asked in the petition. The decisions in other states are in accordance with this holding. See Stewart on Marriage and Divorce, secs. 365, 366 and 367. 1 Am. & Eng. Cyclo. of Law, 478.

The court may grant alimony, though not asked specifically, if the proper facts are before the court. Jackson v. Jackson, 1 McArth., (D. C.) 341; Chandler v. Chandler, 13 Ind., 492; Prescott v. Prescott, 59 Me., 146; Danonv. Danon, 43 Iowa, 411; Weishaupt v. Weishaupt, 27Wis., 621; Wallingsford v. Wallingsford, 6 Har. & J., (Md.) 485; Lishey v. Lishey, 2 Tenn. Ch., 1.

The decree of the court of common pleas is affirmed.