Durham v. Durham
Durham v. Durham
Opinion of the Court
In its order of certification the conrt of appeals said: “This court being of the opinion that since this is an action for alimony alone the court has no power to make a division of the property held by the husband.” That court also stated that the power of the trial court was confined “to an allowance for support and maintenance of the wife so long as the parties live separate and apart, even if the property held by the husband be considered owned by the husband and wife, jointly.”
This court is committed to the principle that in divorce and alimony proceedings the court in awarding alimony is controlled by statute, and is not authorized to exercise general equity powers. (DeWitt v. DeWitt, 67 Ohio St., 340, 350, and Marleau v. Marleau, 95 Ohio St., 162.) In the latter case the syllabus is short and concise: “A proceeding for alimony does not invoke the equity powers of the court but is controlled by statute. The court is only authorized to exercise such power as the statute expressly gives, and such as is necessary to make its orders and decrees effective.” We there decided that proceedings in alimony were not chancery cases within the meaning of our present constitution, and that the incidental relief by way of injunction did not convert the character of the proceeding into one of chancery jurisdiction.
The question involved here is whether upon petition by the wife for alimony alone the court is authorized by statute to award a division of the husband’s property, or whether it is confined to making an allowance for her support and maintenance. The solution of the question depends upon the construction of the statutes relating to the award of all-
In cases where the wife files her petition for alimony alone the legislature has adhered to this definition. Section 11998, G-eneral Code, provides: “Upon satisfactory proof of any of the charges in the petition, the court shall make such order for the disposition, care and maintenance of the children of such marriage, if any, as is just, and give judgment in favor of the wife for such alimony out of her husband’s property as is equitable, which may be allowed to her in real or personal property, or both, or in money, payable either in gross or by installments.”
An examination into the history of this section discloses that when originally enacted (S. & C., 514, 51 O. L., 377 [380], Section 11), and until its change by codification, the word “petition” in the present section was qualified by the words “for alimony alone” and that its benefits were intended to apply only where the wife petitioned simply for alimony. Were it otherwise, there would have been no necessity of providing for the disposition and maintenance of children, for this was definitely provided for in former sections when divorce was granted. Fur
But • Section 11998, General Code, is much more limited in its grant of authority. It provides for
We are satisfied that where the proceeding is one for alimony alone the wife cannot invoke the benefits of Sections 11990 and 11993, General Code, which accrue to a party only when divorce is granted.
Counsel for plaintiff in their brief claim that ‘ ‘ The only question presented to this court for review is: Has the trial court the power under Sec. No. 11998 of The General Code to make a division of the property or is it confined, merely to an allowance for support and maintenance?”- In the reply brief, however, it is intimated that Section 11999, General Code, authorizes such division. This section authorizes only the restoration of the wife’s lands. It was not designed to nor does it authorize an equitable division of the husband’s property.
The common pleas court awarded the plaintiff a gross sum of $500 ¡and $75 per month, payable monthly, as long as the parties lived separate and
The judgments of the lower courts are affirmed.
Judgments affirmed.
Reference
- Status
- Published
- Syllabus
- Divorce and alimony — Action for alimony only — Section ■ 11998, General Code — Division of property not authorized, when. Upon petition of the wife for alimony alone, the trial court is not' authorized to make an equitable division of the ¡husband’s property, but is confined ’by Section 11998, General Code, to making an award as alimony for her maintenance and support during separation.