Summary
In DeMilo v. Watson (1957), 166 Ohio St. 433, 2 O.O.2d 433, 143 N.E.2d 707, the Ohio Supreme Court held that a court granting a divorce could, within the exercise of its general equity powers, provide that payment of alimony in future installments could be made a charge against the payor's estate.
Summary of this case from Alder v. AlderOpinion
No. 35057
Decided June 19, 1957.
Divorce and alimony — General equity powers of court — Alimony award regardless of "aggression" — Payable in future installments — Operative against estate of party charged with payments.
By virtue of two amendments in 1951 to the statutes relating to divorce and alimony, now incorporated in Sections 3105.18 and 3105.20, Revised Code, a court granting a divorce may, in the expressly sanctioned exercise of general equity power and jurisdiction and regardless of the "aggression" of either party, embody in the judgment an order for the payment of alimony in future installments, which order will be operative according to its terms against the estate of the party, charged with such payments, after his death.
APPEAL from the Court of Appeals for Trumbull County.
On December 28, 1951, in the Court of Common Pleas of Trumbull County, Mike DeMilo procured a judgment of divorce from Mary DeMilo for her aggression. She asked for alimony, and it was awarded her by the judgment, in the following language:
"2. That the defendant, Mary DeMilo, be and she hereby is awarded permanent alimony at the rate of one hundred seventy-five ($175) dollars per month, commencing January 1, 1952, and a like sum payable each month thereafter for a period of twelve (12) years therefrom * * *.
"3. That said permanent alimony shall be a lien on the real estate hereinafter described as security for said payments * * *.
"4. That, in the event of the death of the plaintiff, the remaining unpaid balance of the monthly installments, during the period of time heretofore ordered, shall be commuted on the basis of six (6%) per cent, as provided by the statutes of Ohio and said commuted sum shall be paid to the defendant.
"5. That in the event the defendant, Mary DeMilo, shall predecease the plaintiff, Mike DeMilo, and shall die prior to the expiration of the twelve (12) year period, the obligation of the plaintiff, Mike DeMilo, herein shall cease.
"* * *
"8. That the defendant, Mary DeMilo, be and she hereby is barred from any interest of any kind in and to the following described real estate; except as herein decreed * * *."
Mike DeMilo died on August 27, 1952, after having made eight payments of $175 each.
The present action was commenced by Mary DeMilo in the Court of Common Pleas of Trumbull County against George H. Watson, executor of Mike DeMilo's estate, to recover the commuted amount of the deferred payments as stipulated in paragraph four of the judgment quoted above.
It was agreed by and between counsel for the opposing parties in the Court of Common Pleas that if plaintiff should prevail the amount due her would be $18,172.30.
The trial court sustained the contention of the executor that upon the death of Mike DeMilo any obligation to make further payments ceased, and judgment was rendered in favor of defendant.
Such judgment was affirmed by the Court of Appeals, one judge dissenting.
Pursuant to the allowance of a motion to require the Court of Appeals to certify its record, the cause is now in this court for determination on its merits.
Messrs. L.A. H.E. Kujawski and Mr. G.W. Rosenberg, for appellant.
Mr. Bernard W. Rosenberg, for appellee.
Prior to 1951, the allowance of alimony and the division of property in divorce actions were governed by Sections 11990 to 11993, inclusive, General Code, which limited the court rather strictly in the disposition of such matters. The exercise of general equity powers was unauthorized.
Under these sections it was held that an award of alimony payable in future installments at specified intervals, being a personal obligation, abated upon the death of the party charged. Graff, Exrx., v. Graff, 99 Ohio St. 448, 125 N.E. 72, and Snouffer v. Snouffer, 132 Ohio St. 617, 9 N.E.2d 621.
However, an award to the wife of a share of the husband's property under the provisions of Section 5700, Revised Statutes, later Section 11993, General Code, payable in regular installments over a prescribed period and based upon an agreement of the parties carried into the judgment, did not terminate upon the death of the husband but continued as an obligation against his estate after his death. Hassaurek v. Markbreit, Admr., 68 Ohio St. 554, 67 N.E. 1066.
By the statutes referred to and the decisions thereunder, a property settlement entered into between the parties and incorporated in the judgment became an enforceable vested right, whereas an allowance of alimony by court decree alone payable in future installments created no vested rights until the payments became due; and the death of the one charged with making such payments ended any future obligation in that respect.
By two amendments to the divorce and alimony statutes, effective in 1951, the General Assembly radically changed the situation theretofore existing.
One amendment now incorporated in Section 3105.18, Revised Code (Sections 8003-17 and 8003-19, General Code, effective August 28, 1951), empowers the Court of Common Pleas to "allow such alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either at the time of the decree," and "such alimony may be allowed in real or personal property, or both, or by decreeing either such sum of money payable in gross or by installments, as the court deems equitable."
Eliminated completely is any reference to "aggression" on the part of either husband or wife.
The other amendment, presently found in Section 3105.20, Revised Code (Section 8003-21, General Code, effective August 28, 1951), explicitly states:
"In any matter concerning domestic relations, the Court of Common Pleas shall not be deemed to be deprived of its full equity powers and jurisdiction."
These amendments removed the limitations on the powers of the court in alimony and division of property matters in divorce proceedings which had previously existed, and their effect is to permit the court a free and full exercise of its general equity powers to adjust property rights between opposing spouses as it determines will serve the ends of justice. Whether in the judgment such adjustment is called "alimony" or "division of property" is not important.
Although they did not involve the precise problem presented in the instant case, the following recently decided cases discussed and applied the amended statutes and lend strong support to the position taken in the present case. See Clark v. Clark, 165 Ohio St. 457, 136 N.E.2d 52; and Gage v. Gage, 165 Ohio St. 462, 136 N.E.2d 56.
Our conclusion is that in the divorce action between Mike DeMilo and Mary DeMilo, the appellant herein, the court possessed the power and jurisdiction, by virtue of the statutory amendments, to render the judgment it did with respect to alimony, and that such judgment operates to bind the estate of Mike DeMilo in accordance with its terms.
The motivations and considerations which prompted the court in rendering its judgment in the divorce action are of no present concern. Had Mike DeMilo been dissatisfied with that adjudication as it related to alimony, the opportunity was his to appeal the matter to the Court of Appeals, which he did not do.
For the reasons stated, the judgment of the Court of Appeals is reversed as contrary to law, and final judgment is rendered for the appellant in the sum agreed upon as the commuted amount of the unpaid balance of the monthly installments under the judgment in the divorce action.
Judgment reversed.
WEYGANDT, C.J., STEWART, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.