Schneider v. Schneider

7 Ohio App. Unrep. 202
CourtOhio Court of Appeals
DecidedSeptember 14, 1990
DocketCase No. WD-89-38
StatusPublished

This text of 7 Ohio App. Unrep. 202 (Schneider v. Schneider) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schneider v. Schneider, 7 Ohio App. Unrep. 202 (Ohio Ct. App. 1990).

Opinion

ABOOD, J.

This is an appeal from a judgment of the Wood County Court of Common Pleas, Domestic Relations Division, which granted plaintiff-appellant a decree of divorce, ordered a division of the marital assets which had not been previously divided by stipulation of the parties and awarded appellant sustenance alimony. Appellant has filed a timely notice of appeal setting forth two assignments of error:

"FIRST ASSIGNMENT OF ERROR THE LUCAS COUNTY COURT OF COMMON PLEAS ERRED IN FINDING THAT PROPER VENUE FOR THIS ACTION LAY ONLY IN WOOD COUNTY AND IN TRANSFERRING THE CAUSE FROM LUCAS COUNTY TO WOOD COUNTY.

"SECOND ASSIGNMENT OF ERROR UNDER THE FACTS AND CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN FAILING TO MAKE AN AWARD OF PERMANENT ALIMONY FOR AN INDEFINITE PERIOD OF TIME."

The facts that are relevant to the issues on appeal are as follows. The parties were married on June 22, 1967, in Maumee, Ohio; two children were born to the marriage (As of the date of the trial the older child had attained majority and the younger child was in the fifth grade.) On January 22, 1987, appellant filed a complaint for divorce in the Domestic Relations Division of the Lucas County Court of Common Pleas in which she alleged that appellee had conducted activity in Lucas County which gave rise to her claim for relief, alleged that appellee was guilty of gross neglect of duty and extreme cruelty and requested that the marriage be terminated and that she be awarded custody of the minor children, a reasonable division of the marital property and permanent alimony. At the time appellee filed for divorce, both parties resided in Wood County. On February 9, 1987,appellee filed a motion to dismiss for improper venue pursuant to Civ. R. 12(B) (3) in which he argued that Lucas County was an improper forum for the action and, therefore, the cause of action was not properly before the trial court. On March 10, 1987, the parties agreed to submit the venue issue to the trial court for decision on the following stipulated facts:

"1. Defendant and another woman have been seen in public:

"(a) At Loma Linda's restaurant in Lucas County, Ohio in January; 1986 and again in May, 1986;

"(b) At Portside in Lucas County, Ohio during a Party in the Park in the month of June, 1986;

"(c) At Someplace Else restaurant in Lucas County, Ohio in October, 1986;

"2. Plaintiff and defendant have been living separate and apart since June, 1985;

"3. Defendant's relationship with the 'other woman developed a few months before the parties separated in June, 1985;

"4. The woman with whom defendant has been seen resides in Lucas County and was a co-employee of defendant until mid-July, 1986;

"5. Notwithstanding the separation of the parties, defendant has continued to contribute to the support of plaintiff and the minor children;

[203]*203"6. Plaintiff first consulted with her attorney in December, 1985 and defendant first Consulted with his attorney in March, 1986;

"7. The foregoing facts are the only legally relevant connection between the parties and the venue of this action in Lucas County, Ohio."

On March 11, 1987, the referee filed his report which found that Wood County, not Lucas County, was the proper venue for the action and recommended that the case be transferred to the Wood County Court of Common Pleas for further proceedings. On March 24, 1987, appellant filed a notice of objections to the referee's report and a motion for rehearing. Appellee filed a memorandum in opposition to appellant's objections and on April 28, 1987, the trial court filed its judgment entry in which it affirmed and adopted the referee's findings of fact and recommendations of law and ordered the case transferred to the Wood County Court of Common Pleas. On August 31, 1987, appellee filed his answer and counterclaim for divorce alleging that the parties had been living separate and apart continuously without cohabitation for greater than one year. On September 15, 1987, appellant filed a reply to appellee's counterclaim for divorce. On January 8, 1988, appellee filed a motion for physical examination of appellant which motion was granted and on January 27, 1988, appellant was examined by Dr. Stephen Farber at appellee's costs On February 10, 1988, the final hearing was held and testimony was taken.

At the final hearing, Nancy Kahler, a friend of both parties, testified that she had seen appellee at Loma Linda's Restaurant in February 1986, in the company of two women, one of whom appellee admitted to being his girlfriend.

Appellant then testified that she had known since February 28, 1985, that appellee had had a girlfriend but that she and appellee had attempted to keep their marriage together despite that fact; appellee, however, refused to give up his girlfriend, and appellant could not handle that situation. Appellant testified that appellee had moved out of the marital home in June 1985, and that since he had left he had provided her with money to maintain the residence and to support the children and herself. Appellant went on to testify that in 1958, when she was a teenager, she had had one leg amputated below the knee due to congenital problems and had been fitted with an artificial limb. At the time of the final hearing, appellant was approximately forty-four years old, had graduated from Bowling Green State University in 1966 and had a teaching degree. Appellant testified that she had taught school for several years until, in the fall of 1968, she and appellee agreed that she would quit working due to problems with ulcers on her amputated leg caused by heat aggravation and by being on her feet so much. After she quit full-time teaching, she did do some substitute teaching but when she became pregnant and developed problems with her pregnancy, she quit that as well. Appellant testified that she did not work outside of the home again until 1985 when she discovered that appellee was having an affair. At that time, appellant obtained employment as a receptionist for a podiatrist working six hours a day, four days a week for $3.50 an hour. In 1987, that employment was reduced to two days a week, and she took a second part-time position with Ferrel Construction Company as a typist earning $5.50 an hour. Appellant testified that, in September 1987, she quit both temporary jobs and became employed with Statewide Information Systems, first as a typist and filer for three days a week, and is currently a data collector four days a week at $4.50 an hour. Appellant stated that she can only handle working four days because she is exhausted by Thursday evening due to her health problems. Appellant testified that in 1977 she was diagnosed as having rheumatoid arthritis and suffered stiffness in her joints, specifically her shoulders, knuckles, foot, hands and wrists Appellant testified that, in addition to physical therapy, she is currently being treated with what are known as first line drugs, which include a special arthritic aspirin called Cama, but that her treating doctors have recommended treatment with second line drugs, which are stronger and which include gold treatments Appellant testified, however, that she is reluctant to start gold treatments due to her fear of side effects and the fact that it would antagonize her stomach ulcer. Appellant also testified that her mother had had rheumatoid arthritis and had severe problems with the side effects of second line treatments.

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Bluebook (online)
7 Ohio App. Unrep. 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schneider-v-schneider-ohioctapp-1990.