instructing courts to approach a divorce action like an action in partition by using their authority to dissolve, windup and distribute assets and liabilities
How later courts described this case
- instructing courts to approach a divorce action like an action in partition by using their authority to dissolve, windup and distribute assets and liabilities
- “ ‘if the paramour resides in the wife’s home without contributing anything toward the purchase of food or the payment of normal household bills, then there may be a reasonable inference that the wife’s alimony is being used, at least in part, for the benefit of the paramour, in which case it could be argued with force that the amount thereof should be modified accordingly’ ”
- “fair [separation] agreements may be rendered manifestly oppressive ... such as ... where the economic situation of either or both of the parties drastically changes”
- i.e., that unchastity alone is not sufficient to terminate alimony
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Cherry v. Cherry, 66 Ohio St. 2d 348 (1981)
See Berish v. Berish, 69 Ohio St. 2d 318, 432 N.E.2d 183, 184-185 (Ohio 1982); Wolfe v. Wolfe, 46 Ohio St. 2d 399, 350 N.E.2d 413, 422 (Ohio 1976), overruled on other grounds Cherry v. Cherry, 66 Ohio St. 2d 348, 421 N.E.2d 1293 (Ohio 1981).
Superseded by statute, as recognized in Morris v. Morris (Slip Opinion)
46 Ohio St.2d 399 , 350 N.E.2d 413 (1976), superseded by statute as stated in Morris v. Morris, 148 Ohio St.3d 138 , 2016-Ohio-5002 , 69 N.E.3d 664, ¶ 28
Limited by McClain v. McClain, 15 Ohio St. 3d 289 (1984)
However, "a division of marital property is not subject to modification through the continuing jurisdiction of the court."Robins, at ¶ 11, citing Wolfe v. Wolfe (1976),46 Ohio St.2d 399, limited by McClain v. McClain (1984), 15 Ohio St.3d 289;Bean v. Bean (1983), 14 Ohio App.3d 358, 361-362.
Distinguished
Distinguished by Ressler v. Ressler, 17 Ohio St. 3d 17 (1985)
However, Wolfe is distinguishable because that case involved a sustenance award that was extended indefinitely and terminable on certain conditions subsequent, whereas this case involves a sustenance award that is subject to conditions subsequent, but definitely terminates after a term of years.
The opinion
Paul W. Brown, J.,
concurring. My concurrence in the majority opinion indicates my agreement with the principles there recognized—that a separation-agreement merges in'a decree of divorce when incorporated therein; and that the decree is thereafter subject to the continuing jurisdiction of the trial court, so that it may be modified in the event of demonstrated need for such modification, and examined with a view to determining its continued enforceability under its own terms.
I do not conclude that an agreement betweén the parties,1 oúcé- merged into a divorce decree, may. be arbitrarily disregarded, but to the contrary, that compelling reasons and a sound exercise of discretion must appear in an order which modifies or terminates such a decree.
• Here, the trial court gave the following reasons for the termination of the payments of alimony for- the sustenance of the wife: ■■■■'.■
“* [W]e have had her [the appellee’s] .admissions that she did, for a long period of time, up until; and after Hie 'filing of this motion, live with another man, cohabited with this other man in her home in the -presence, of the. children, traveled with him as husband and wife;, bought airplane tickets as husband and wife, registered- as husband and wife aid has, in fact,- held herself out-to Others, as being- husband and wife, both by her purchase-of the tick *423 ets and her going on these trips, registering in motels’’ and her living together in the Scottsdale community., with him- and with 'her children, so that she has, in fact,- held herself-out as the wife of Mr. Erickson.” .
• “The eourt has to recognize that, as counsel on both sides have pointed out, that this behavior or conduct of the living together or registering together in motels as. husband and wife, together, certainly, apparently goes on today.”
“The court finds that to be a fact in this cáse. Now,the court has previously ruled that it would be against-public policy for a court to enforce an alimony order where the wife, who was receiving the alimony, lived onlv with another person.
“Now,, basing that on the fact of a common law marriage, and I think this is where we differ from the case you have, in the recent Court of Appeals decision. This isn’t-based on the-fact that she has a common law marriage, but the fact that she, in effect, is holding herself out to others that she is married, that she is, in fact, attempting, to enjoy all of the benefits of a marriage by cohabiting with another man and yet not entering into an actual marriage in order to avoid the loss of the alwnony. [Emphasis added.]
“ * * * I think that in this particular case, the separation agreement says that the alimony shall be terminated when Mrs. Wolfe remarries and I think her holding out that she has remarried is sufficient that this court should terminate that alimony and her conduct is such that this court could not, being consistent with public policy, enforce the alimony order that it has made by the acceptance of the separation agreement any further.”
The record clearly discloses that the evidentiary basis for the trial court’s conclusion is sound. The trial court’s order terminating the alimony for sustenance is within my perception of that court’s continuing jurisdiction, and since I find no abuse of discretion, I concur in the reversal of the judgment of the Court of Appeals, and the reinstatement of the trial court’s order.