Hassaurek v. Markbreit

There was, upon the evidence, -no question of fact for the consideration. of the jury. The general question is whether, upon the conceded facts, the judgment should be for the plaintiff, as was held in the court of common pleas, or for the defendant, as was held in the circuit court. The decree of divorce upon which the plaintiffs action is founded is easily recognized as the termination of marital relations between a pair with whom respect had survived devotedness. Its terms show that the natural relations between the mother and -her children were to- continue so far as was compatible with a severance of the relations between the parents;, that although the evidence established the allegations of the wife’s willful absence, the husband desired to secure to her during her life such support as was consistent with his means; that it was by his request that his desire found expression in the terms of the decree, and that the obligation which it imposed was to continue during her life without regard to the duration of his own, if the wife should not by remarriage acquire other means of support. The binding character of this obligation was recognized throughout eighteen years by all the members of the family of the parties. It is now disputed by strangers. Certainly an arrangement so consonant with natural justice should be enforced unless it is forbidden by some inflexible rule of the law so beneficent in its general operation -that it should be maintained, notwithstanding hardships which -may result from its application to particular cases. Such a rule was thought to be applied to the case in the circuit court when it reversed the judgment of the court of common pleas because that court ‘liad no jurisdiction to render the judgment sued 539 on in so far as it required the payment of 'annual installments as alimony -beyond the natural life of Frederick Hassaurek without fixing a definite sum from which the installment's were to be paid.” To support this conclusion much is urged and many cases are cited in the elaborate briefs of counsel for the defendant. That inquiry may be effective, attention should be given to- the precise nature of the case. There is no direct attack upon the decree of 1881 by a proceeding to reverse it as erroneous. It is attacked collaterally as void. There is no occasion for considering what presumption should be indulged when the decree in a case of this character is silent with respect to the time during which payments are to be made, since it is here provided expressly that they should continue during the life of the wife, she remaining unmarried. For need we consider the nature of the obligations upon which decrees for alimony are founded since the finding of the court upon the evidence that the wife had been willfully absent for more than three years, and its judgment' that the marriage relation should be terminated for that reason, excluded her right to alimony. The court having concluded that a divorce should be decreed for her aggression, its further jurisdiction was defined by Section 5100 of the Revised Statutes, as follows: “And the court may adjudge to her such share of the husband’s real or personal property, or both, -as it deems just' and reasonable.” In view of the wide discretion vested in -the court in making that adjudication it can not -be said that its power to adjudge is limited to the allegations of the pleadings as in Rosebrough v. Ansley, 35 Ohio St., 107. The court having this duty to perform and having the parties and their counsel before it, with their consent and at the request of the husband adjudged to the wife during life the equivalent -of less than, one-third -of the dividends of the stock owned by the husband. Whether this judgment would have been an erroneous exercise of the jurisdiction which the statute vested in the court if it had been rendered without, we need not consider. It must now be regarded as settled beyond controversy that when, in an action for divorce, the court is satisfied from the evidence that' the marriage relations should be annulled, the parties 540 are competent to contract with respect 'to such changes in property rights as are to result' from the severance of the former relation, and their contract, if approved by the court, may be carried into its decree, thus becoming a perpetual obligation. Petersine v. Thomas, 28 Ohio St., 596; Julier v. Julier, 62 Ohio St., 90; Law v. Law, 64 Ohio St., 369. Whether the request of the husband that the decree should be in the terms employed was prompted by a desire to advance his own interests by retaining personal control of the stock which would otherwise have been adjudged to the wife, or by the conviction that in this mode her future support would be more secure, can not be material to the validity of the obligation!. The judgment of the circuit court can not stand upon-the ground upon which it was placed. The plaintiff’s demand having been made upon the executor upon his appointment as special administrator and having been complied with because of his knowledge of its existence and justice, there is no basis for the contention that there should have been a further presentation of the claim. Nor could the administrator, with knowledge of the existence of this demand against the estate, defeat it by a distribution of the estate in his hands. Indeed, the conduct of the parties for eight years thereafter shows that what is spoken of as the distribution of 1891 was regarded by the parties as subject to the demand of the plaintiff to be discharged by the administrator. Judgment of the circuit court reversed and that of the common fleas affirmed.