Jackson, J.
This appeal presents the question of whether a wife may avail herself of an action in forcible entry and detainer to exclude her husband from the marital dwelling.
In 1971, Laura Slansky, plaintiff appellee, brought this suit in Berea Municipal Court to oust Robert Slansky, the appellant, from the house which they had shared as husband and wife until 1967. The complaint alleged that the appellant had “entered upon . . . [the] premises as the husband of the plaintiff and has failed to pay rent to plaintiff in any amount whatsoever while occupying said premises. ’ ’ However, the appellee introduced no evidence of any rent or lease agreement between the parties, and it is apparent from the arguments and evidence presented at trial that Mrs. Slansky based her claim upon the fact that she held title to the property.
The testimony of the parties instead focused almost entirely upon the history of their martial relationship and upon the ownership aspects of the property in dispute. The record discloses that the property was acquired during the parties’ marriage, sometime between 1941 and 1942. Mrs. Slansky testified that the lot was purchased with funds received for the death of one of their children, although she did not elaborate on whether this money was originally paid to her, or her husband, or to both. The plaintiff wife testified that she and her husband built the house over a long period of time with the money for materials being derived from their respective employment with the National Carbon Corporation, and this testimony was not contradicted. However, appellant husband admitted that title to the property was vested in the name of his wife.
It is evident that the marriage relationship between the parties has not been characterized by harmony and tranquillity. The record does not disclose the date of their marriage, but it appears from the testimony that the Slanskys were first divorced in 1949. This, however, did not have much of an impact upon the parties for they continued living together as man and wife, eventually bearing two children. However, in 1967 their marriage again ran aground. Prompted by a domestic quarrel and by the generally uninhabitable conditions of the house,
Mrs. Slansky moved ont. She filed a divorce action against her husband shortly thereafter, but the divorce was denied. Since 1967, the appellant has remained in the marital dwelling while the appellee has lived elsewhere. At trial both parties regarded themselves as being married to one another, and for the purposes of the case we assume that the parties were still legally married at the time this action was brought.
At the conclusion of the evidence, the court found the husband guilty of unlawfully detaining the premises and ordered restitution. The appellant has appealed this judgment, assigning as error that the judgment is contrary to law; he argues that the Municipal Court did not have jurisdiction over this controversy by virtue of R. C. 3103.04.
Hardly a paragon of legislative draftsmanship, this statute does not specifically preclude a Municipal Court from effecting spousal exclusions from the marital dwelling through a forcible entry and detainer action. Yet, the historical evolution of this enactment, when examined in relation to the experience of other jurisdictions in coping with the same problem, has persuaded this court that appellant’s contention has merit. The Berea Municipal Court should have dismissed this case for lack of jurisdiction.
R. C. 3103.04 is part of a compendium of legislation constituting Ohio’s Married Women’s Act.
As the Nineteenth Century precursor of today’s women’s liberation movement, this Act was part of a national campaign to sweep away the common law web of limitations and disabilities which had entangled a married woman’s rights to own and dispose of property, to make binding contracts, and to sue and be sued in an individual capacity. With respect to real property, the restrictions had been particularly severe. For all practical purposes, the husband became the owner of the wife’s realty solely as an incident of mar
riage. He was entitled to the possession, control and nse of lier land, and lie conld additionally claim the rents and profits derived therefrom.
It has even been suggested that while the husband could not sue the wife in ejectment or trespass, he could oust her from their property, her only recourse being that she could pledge her husband’s credit for necessaries.
Like its counterparts in other states, the Ohio Act remedied these fundamental inequities by explicitly creating the legal right of a married woman to hold and dispose of her own separate property and by abolishing for the most part the husband’s legal interests in her property.
But this Act stood apart from the others in that it flatly prohibited the exclusion of either spouse from the
otter’s dwelling and was broad enough, to include exclusions that were the result of self-belp as well as those secured through judicial relief.
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Jackson, J.
This appeal presents the question of whether a wife may avail herself of an action in forcible entry and detainer to exclude her husband from the marital dwelling.
In 1971, Laura Slansky, plaintiff appellee, brought this suit in Berea Municipal Court to oust Robert Slansky, the appellant, from the house which they had shared as husband and wife until 1967. The complaint alleged that the appellant had “entered upon . . . [the] premises as the husband of the plaintiff and has failed to pay rent to plaintiff in any amount whatsoever while occupying said premises. ’ ’ However, the appellee introduced no evidence of any rent or lease agreement between the parties, and it is apparent from the arguments and evidence presented at trial that Mrs. Slansky based her claim upon the fact that she held title to the property.
The testimony of the parties instead focused almost entirely upon the history of their martial relationship and upon the ownership aspects of the property in dispute. The record discloses that the property was acquired during the parties’ marriage, sometime between 1941 and 1942. Mrs. Slansky testified that the lot was purchased with funds received for the death of one of their children, although she did not elaborate on whether this money was originally paid to her, or her husband, or to both. The plaintiff wife testified that she and her husband built the house over a long period of time with the money for materials being derived from their respective employment with the National Carbon Corporation, and this testimony was not contradicted. However, appellant husband admitted that title to the property was vested in the name of his wife.
It is evident that the marriage relationship between the parties has not been characterized by harmony and tranquillity. The record does not disclose the date of their marriage, but it appears from the testimony that the Slanskys were first divorced in 1949. This, however, did not have much of an impact upon the parties for they continued living together as man and wife, eventually bearing two children. However, in 1967 their marriage again ran aground. Prompted by a domestic quarrel and by the generally uninhabitable conditions of the house,
Mrs. Slansky moved ont. She filed a divorce action against her husband shortly thereafter, but the divorce was denied. Since 1967, the appellant has remained in the marital dwelling while the appellee has lived elsewhere. At trial both parties regarded themselves as being married to one another, and for the purposes of the case we assume that the parties were still legally married at the time this action was brought.
At the conclusion of the evidence, the court found the husband guilty of unlawfully detaining the premises and ordered restitution. The appellant has appealed this judgment, assigning as error that the judgment is contrary to law; he argues that the Municipal Court did not have jurisdiction over this controversy by virtue of R. C. 3103.04.
Hardly a paragon of legislative draftsmanship, this statute does not specifically preclude a Municipal Court from effecting spousal exclusions from the marital dwelling through a forcible entry and detainer action. Yet, the historical evolution of this enactment, when examined in relation to the experience of other jurisdictions in coping with the same problem, has persuaded this court that appellant’s contention has merit. The Berea Municipal Court should have dismissed this case for lack of jurisdiction.
R. C. 3103.04 is part of a compendium of legislation constituting Ohio’s Married Women’s Act.
As the Nineteenth Century precursor of today’s women’s liberation movement, this Act was part of a national campaign to sweep away the common law web of limitations and disabilities which had entangled a married woman’s rights to own and dispose of property, to make binding contracts, and to sue and be sued in an individual capacity. With respect to real property, the restrictions had been particularly severe. For all practical purposes, the husband became the owner of the wife’s realty solely as an incident of mar
riage. He was entitled to the possession, control and nse of lier land, and lie conld additionally claim the rents and profits derived therefrom.
It has even been suggested that while the husband could not sue the wife in ejectment or trespass, he could oust her from their property, her only recourse being that she could pledge her husband’s credit for necessaries.
Like its counterparts in other states, the Ohio Act remedied these fundamental inequities by explicitly creating the legal right of a married woman to hold and dispose of her own separate property and by abolishing for the most part the husband’s legal interests in her property.
But this Act stood apart from the others in that it flatly prohibited the exclusion of either spouse from the
otter’s dwelling and was broad enough, to include exclusions that were the result of self-belp as well as those secured through judicial relief.
The reasons which actually motivated the legislature to engraft this severe limitation on not only the wife’s newly fashioned right to own and control property but also on the more ancient correlative rights of the husband have, of course, been lost in time.
One plausible explanation is
that the General Assembly was unfavorably influenced by the New York experience with spousal exclusions prior to 1887. Two decisions stand out. In
Minier
v.
Minier
a married woman brought an ejectment action against her husband to recover possession of a home owned by the wife and previously used as the marital dwelling. The husband had apparently driven the spouse out of the home. In construing the New York Act, the court held that £ ‘ [i] n regard to the property, the relation of husband and wife does not affect it; as the parties are strangers to each other,”
and on this basis affirmed the judgment for the wife,. Subsequently, in
Wood
v.
Wood,
the high court of New York reached the same result in an almost identical fact situation as in
Minier.
Property had been conveyed to the wife for life for her sole and separate use. The property also had been occupied as the marital dwelling, but, by reason of the husband’s conduct, the wife left. She eventually filed an ejectment action to remove the husband and restore herself to possession. In applying the married women’s act, the court held that the husband had no legal or equitable interest in the property and by virtue of her title in the land the wife was entitled to sole and absolute possession.
The New York courts cannot be faulted for attempting to follow the unqualified language of that state’s Married Women’s Act. But it may be argued that a price was paid for vindicating the wife’s legal interest in the marital dwelling. For the family home represents more than a bundle of property rights and privileges which the owner is entitled to assert against the rest of the world. Beyond its more primitive function of sheltering the husband and wife from the physical elements, it ideally provides the requisite sanctuary in which a marriage relationship can take root and grow. It has been said that in marriage a husband and wife acquire a personal as well as a legal right to each other’s conjugal society.
The marital home offers
a place wherein spouses may enjoy each other’s society as they meet their obligations of mutual respect, fidelity and support.
Where a spouse is denied access to the matrimonial home, as was the result in the eases discussed above, these rights and obligations are invariably disturbed. The Ohio Legislature may very well have believed that these marital rights were entitled to just as much protection as the property rights in the home and that the most effective means to accommodate them as they converged in the dwelling was to prohibit exclusions entirely.
Attributing such a belief to the legislating body is not unreasonable. Just nine years preceding the passage of the Ohio Act, in the seminal case of
Manning
v.
Manning,
the North Carolina Supreme Court warned of the disruptive impact which spousal exclusions might have upon marriages. Relying upon her rights under that state’s Married Women’s Act, the wife had brought an ejectment action against the husband to recover possession of her land which he had assumed control and from which he had been appropriating the rents and profits. While the court upheld the granting of a writ of possession, thus restoring the wife’s occupancy and control over her lands, it notably ordered modification of the writ so as not to eject the husband from the premises. As ground for this unprecedented action, the court observed:
“The plaintiff [wife] is entitled to be let into the possession of her lands, and in a legal sense, the sole and exclusive possession. That will not impair the husband’s marital right of occupancy, the right of ingress and egress to her dwelling and society, to live with her and to tread upon her domains. She is entitled to be put in possession, if she has been excluded, but not by expelling him. The possession of the husband is not like that of a stranger, adverse to the wife, but in law consists with it; and if the bad conduct of the husband has disturbed that relation, the law steps in, not to destroy, by his expulsion, but to re
store harmony and unity of the relation to the status established by marriage.”
To deny the husband this right, the court fearfully prophesied, would have a far-reaching and detrimental impact on marriage as an institution and, in turn, on the stability of our social and political system.
The early version of E. C. 3103.04, with its unqualified language, remained in effect for over thirty years. Then, in 1919, it was amended to include the present provision giving “courts of competent jurisdiction” the power to exclude either a husband or a wife “upon a decree or order of injunction.”
Again, we axe without evidence of the motivation prompting the legislature to carve this exception or to choose injunctive relief as the sole means of effecting spousal exclusions. Conceivably there was concern that a literal interpretation of the original statute would preclude a court from ejecting a spouse in those circumstances which might warrant such relief, such as protection from physical violence. Moreover by 1919 the use of injunctions for this purpose was not a novel practice, but had been tried and tested both outside and within the borders of Ohio.
In any event, by limiting the available relief to injunctions the legislature effectively restricted review of this type of problem to the court which had the expertise to handle questions involving domestic relations, namely, the common pleas court. That court alone has been granted jurisdiction over domestic affairs, including divorce and alimony, and general jurisdiction to grant injunctions.
Although the right to exclusive possession has always been a significant aspect of property ownership
, that right, like any other, may at times be exercised capriciously and arbitrarily absent legal or equitable limitations. The marriage relationship unfortunately presents an opportunity for such abuse. Human experience teaches that marriage is not without its own internal tensions and stresses, which at times may overcome mature judgment. An unkind remark, a misdirected burst of anger, a thoughtless gesture —any one of these may be a sufficient catalyst to unleash a vituperative torrent of pent-up anxieties and frustrations. It is during these moments of emotional fury — when a couple may be prompted to say or do things to one another which they ordinarily would consider unthinkable— that one spouse may vent his or her anger by resorting to the legal process to oust the other from the marital domicile. Of course, the impact of such action can be extremely severe and sometimes irreversible. The point need not belabored that no marriage can long survive where the husband and wife are prevented from living together. The
effect of R. C. 3103.04, and its predecessor, however, is to stave off such drastic action. While the overall purpose of the Married Women’s Act was to make the wife’s property rights relatively contiguous with those of the husband, R. C. 3103.04 limits their respective rights so that neither spouse can effect a separation, revengeful or otherwise, simply because one has full title to the marital dwelling house. To this extent, the statute serves to protect the marriage. To be sure, we do not intend to imply that R. C. 3103.04 can prevent marital discord or avoid a voluntary separation and thus we think that the laudable policy considerations which persuaded the court in
Manning
v.
Manning, supra,
to restrict spousal exclusions, may be somewhat divorced from reality. By the time a spouse avails himself or herself of legal process to effect an exclusion of the other, the marital relationship may be already strained beyond the breaking point. But if that is indeed the case, surely the common pleas court, with its experience in family affairs and its broad equity powers, is the most appropriate forum for hearing the matter. It offers a greater opportunity to bring about a more just resolution of a particular marital dispute, taking into account the interests of all members of the family. As this case ably demonstrates, a contrary holding would allow spousal exclusions in summary proceedings in courts of limited remedial powers. Here the only issue cognizable in the proceeding below was who had right to immediate possession and the only available relief was restitution to the exclusion of the appellant.
Counsel for appellee attempts to bring this case within the exception clause of R. C. 3103.04 by arguing that a “decree” means any judgment of any court, including a judgment in a forcible entry and detainer action brought in a municipal court. This argument rests upon the assumption that the word “decree” is to be construed separate and apart from the phrase “order of injunction,” which immediately follows that term. However, counsel has ignored the significant fact that “decree” is a generic term which has historically referred to judgments of a
court of equity, as opposed to those of a court of law.
Moreover, the terms “decree” and “order” are not so unrelated as the appellee contends. Both refer to rulings of the court. But, on the one hand, a “decree” has been held to describe any final (equitable) judgment which determines the rights of the parties and announces the legal consequences of the suit. On the other hand, an “order” has been defined to mean only an interlocutory or temporary ruling which does not decide the case, but only resolves an intervening matter. Thus, the distinction is one of finality.
In light of the fact that an injunction is an equitable remedy which may be granted either provisionally as an “ order ’ ’ or with finality as a “decree,” we are unable to agree with the appellee’s open-ended construction of R. C. 3103.04 which would allow any court in any given cause of action to exclude a spouse from the marital dwelling. Clearly, this statute contemplates injunctive relief as the only means for perfecting the exclusion of a spouse.
As an alternative route for circumventing the provisions of R. C. 3103.04, the appellee presses for a narrow construction of the term “dwelling” as it appears in the prohibitory clause of this statute. She argues that the term “dwelling” should be defined only in reference to whether the parties were still living together as husband and wife when the action was filed. Since she has been unilaterally separated from her husband for the last three years, it is her contention that the house in question is no longer a marital dwelling within the purview of the statute. However, we believe that such an argument
opens the door to complete emasculation of the statute and therefore we reject it. If the “dwelling” as it appears in K. C. 3103.04 were held to be a function of the time of separation, then a spouse could completely circumvent this section by simply moving out for a judicially prescribed length of time prior to filing a property action at law, completely bypassing the prescribed avenue of injunctive relief.
Although we conclude that municipal courts have to determine cases in forcible detainer, they are without jurisdiction to determine domestic relation cases and may not determine that one or the other may be excluded from the marital home pursuant to It. C. 3103.04.
For the reasons heretofore mentioned, we find that the trial court committed error prejudicial to the appelant and, accordingly, we reverse the judgment of the Berea Municipal Court and enter final judgment for the appellant.
Judgment reversed.
Silbert, P. J., concurs.