# Thomas v. Thomas

> Ohio Court of Appeals · March 31, 1988 · 44 Ohio App. 3d 6

URL: https://www.frixlaw.com/law-library/cases/3740484

## Case

- **Full name:** Thomas, Appellant, v. Thomas, Appellee
- **Court:** Ohio Court of Appeals
- **Decided:** March 31, 1988
- **Citations:** 44 Ohio App. 3d 6; 540 N.E.2d 745; 1988 Ohio App. LEXIS 1216
- **Precedential status:** Published
- **Opinion:** Dissent by Whiteside
- **Judges:** Bowman, Strausbaugh, Whiteside
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3740484

## Opinion text

Whiteside, P.J.,
concurring in part and dissenting in part. Although I concur in the judgment of reversal, my reasons for doing so and the resultant remand proceedings in the trial court vary from those expressed by the majority.
First, as to relief sought, pursuant to R.C. 3113.31(E)(1)(d) or (e), the trial court acted within its discretion to refuse relief herein because of the pendency of the divorce proceedings since R.C. 3113.31(E)(3) expressly provides that any relief granted pursuant to those subsections “shall terminate no later than sixty days after the filing of an action for divorce, dissolution, or separate maintenance by the petitioner or respondent.” This clearly vests discretion in the trial court to determine how long after the filing of divorce proceedings relief under R.C. 3113.31(E)(1)(d) or (e) should be available, rather than having the issue determined in the divorce proceedings. Thus, it was within the discretion of the trial court to find that the order issued pursuant to R.C. 3113.31(E) (l)(d) or (e) shall terminate upon service of the divorce summons. Since this had occurred herein, discretion arguably exists to terminate the order immediately and, thus, not to issue it. This case must be remanded to the trial court to exercise its discretion.
As to the remainder of the possible relief under R.C. 3113.31, the statute does not preclude relief even though a divorce action is pending or is subsequently filed. However, this does not, as the majority seems to suggest, require that the same issue be litigated in two different proceedings (one a divorce proceeding and the other under R.C. 3113.31).
The real issue before us is not one of jurisdiction, but rather, one of abatement. Contrary to the suggestion in the majority opinion, the trial court has jurisdiction to grant in the divorce action the identical relief sought in the instant proceeding (with the possible exception of an order that respondent
*9
seek counseling). The availability of such relief in the divorce proceedings vests authority in the trial court to deny R.C. 3113.31 relief where the parties are litigating, or could litigate, the same issue in the divorce proceedings. Ordinarily, it is appropriate to avoid multiple litigation where one action can encompass and determine all rights and controversies between the parties. There is no reason not to apply that principle here. At the very least, the trial court should consolidate the proceedings even if the majority view be correct.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3740484. Public record. Not legal advice.