I concur in the judgment of the trial court in awarding defendant a divorce and alimony on her cross-petition. The long record of 654 pages includes considerable irrelevant matter and immaterial evidence relating to commonplace matters that obtain generally in the relationship of husband and wife. If the trial court had awarded a divorce to the plaintiff, such finding and judgment could not have been disturbed by this court, particularly in view of defendant's loss of interest in her husband and her firm resolve to abandon the home in Michigan and take up her residence in Florida, and her refusal longer to live with plaintiff anywhere.
I respectfully dissent from the majority opinion on two grounds:
1. On the failure of the trial court to make separate findings of fact and law, particularly in not setting out what acts of gross neglect and extreme cruelty the plaintiff had committed, and also what acts of plaintiff were committed in support of the finding that plaintiff had falsely accused defendant of immorality.
2. On the error of the trial court in partitioning the property of the parties, held as tenants in common, as a part of its judgment awarding alimony to defendant.
1. On the issue of separate findings requested by plaintiff, we call attention to the provisions of the statute, Section2315.22 Revised Code:
"When the questions of fact are tried by the court, its findings may be general for the plaintiff or defendant, unless, with a view of excepting to the court's decision upon questions of law involved in the trial, one of the parties requests otherwise, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law."
This section of the Code has been before the courts on numerous occasions, as appears by the reported cases, some of which we shall consider briefly.
In the case of Cleveland Produce Co. v. Dennert, 104 Ohio St. 149,135 N.E. 531, it was held that the provisions of Section 11470, General Code (now Section 2315.22, Revised Code), confer a substantial right and are mandatory. It is inferable from *Page 156 the court's opinion that a complete bill of exceptions had been filed in the trial court. Special interrogatories had been submitted in the trial court, and it was held that it was the duty of the court, as a part of its judgment, to answer all interrogatories involving ultimate facts and "* * * to make answer to all interrogatories involving the ultimate facts of the controversy, and to all involving probative facts from which the ultimate facts can be inferred as a matter of law, and its failure to do so is reversible error."
In the later case of Bauer v. Cleveland Ry. Co., 141 Ohio St. 197, 47 N.E.2d 225, the case of Cleveland Produce Co. v. Dennert, supra, was cited with approval, and also the earlier case of Oxford Twp. v. Columbia, 38 Ohio St. 87. While holding that the statute was not applicable, on the record in the Bauercase, the court in its opinion reaffirmed the doctrine of the earlier cases, by pointing out that the statute confers a substantial right, is mandatory in character, and that failure to comply with its provisions, when request is made, is reversible error, unless the party making such request was not prejudiced by such refusal.
The language of the exception is similar to that found in the opinion of the Court in Oxford Twp. v. Columbia, supra, but in neither of those two cases was the proviso carried into the syllabus.
Under the Rules of Practice of the Supreme Court (Rule VI, 94 Ohio St., ix) "A syllabus of the points decided by the court, in each cause, * * * shall be confined to the points of law arising from the facts of the cause that have been determined by the court."
We do not find that the Supreme Court, in any reported case, has modified or overruled the rule of law as stated in the syllabus of Cleveland Produce Co. v. Dennert, supra, in construing such statute, wherein it was held that the provisions of the statute confer a substantial right and are mandatory, and that the failure of the court to comply with the statute is reversible error.
However, in In re Guardianship of Zimmerman, 78 Ohio App. 297, 70 N.E.2d 153, this court held that while the provisions of the statute in conferring a substantial right are mandatory *Page 157 (citing the Oxford Twp., Bauer and Cleveland Produce cases,supra), if a complete bill of exceptions containing all the evidence has been filed and approved, and one of the errors assigned is that the judgment is against the weight of the evidence, the failure of the trial court to comply with the request to make separate findings of ultimate fact is not prejudicial error.
The Zimmerman case, supra, was cited by this court in Shunk v. Shunk Mfg. Co., 86 Ohio App. 467, 473, 93 N.E.2d 321 (judges sitting by designation), and in In re Estate of Harmon,87 Ohio App. 451, 457, 96 N.E.2d 34, to which we call attention. In the Estate of Harmon case, this court held, as appears by the third paragraph of the syllabus:
"Where upon timely request a court fails to make findings and the record on appeal contains a complete transcript of the evidence, the reviewing court may but is not required to review the record to pass upon errors assigned and may reverse the judgment for the failure to make findings and remand the cause for the making of such findings without passing upon the other errors assigned."
Inferentially, the Shunk and Estate of Harmon cases appear to modify the holding in the Zimmerman case, and on the same reasoning as is found in the opinion in Cleveland Produce Co. v.Dennert, supra. We quote from the opinion of the court, Marshall, C. J., page 155:
"We are of the opinion, however, that Section 11470, General Code, does confer a substantial right and that a denial of that right constitutes such error as should cause this court to reverse the judgment, unless it can be determined by this court without weighing the evidence that plaintiff in error has not been prejudiced. Any other view of this section would render its provisions a dead letter."
See, also, Manchester v. Cleveland Trust Co., 95 Ohio App. 201,213, 114 N.E.2d 242; Zatko v. Zatko, 100 Ohio App. 223.
In the instant case, the trial court failed to comply with the statute, in that the court failed to make separate findings of ultimate fact and separate findings of law.
The provisions of Section 2315.22, Revised Code, are in mandatory language, which the reported cases recognize. I am *Page 158 of the opinion that this court can not say, as a matter of law, that plaintiff has not been prejudiced by the trial court's noncompliance with the statute.
2. With respect to the plaintiff's assignment of error that the trial court erred in awarding an excessive amount as alimony to defendant and an excessive amount for the support of the minor children, there appears to be a prior issue presented on the record which requires consideration, and which arises by reason of the character of the judgment awarding alimony, which by its terms, partitioned the several parcels of real property owned by the parties as tenants in common.
As pointed out in the majority opinion, this court held inHuff v. Huff (1946), 79 Ohio App. 514, where the wife had been granted a divorce and awarded alimony on her cross-petition, that the trial court was without authority to make a division of the real property owned by the parties as tenants in common, which judgment of the court could be accomplished only in a partition proceeding in equity. A motion and cross-motion to certify this case was overruled by the Supreme Court.
In the decade following the decision in the Huff case, the rule of law announced therein has not been disaffirmed by any appellate court of this state, or by the Supreme Court, so far as we can find.
Furthermore, earlier cases in the Supreme Court have affirmed the same rule which this court announced in the Huff case, and later cases in the appellate courts have not disaffirmed the doctrine announced therein.
I do not understand how this court can properly bypass theHuff case, which has stood the acid test of time without being overruled or disaffirmed.
In the instant case, the judgment entry recites: "* * * coming now to the allowance of alimony and division of property to the plaintiff husband and to defendant wife, it is hereby ordered * * *."
Included in the judgment awarding alimony to the wife, the trial court ordered mutual conveyances by the parties of property held as tenants in common, and also directed defendant to convey to plaintiff certain properties, to which he held the legal title at the time of the marriage of the parties. *Page 159
We shall review briefly a few cases which have considered the issue now before us, in addition to the Huff case.
In Owens v. Owens (1948), 85 Ohio App. 414,88 N.E.2d 922, it was held that where an award of alimony is made to the wife, who obtained a divorce for the husband's aggression, the court did not have the statutory power to order the wife to convey title to real estate held by her as tenant in common, as such order "constitutes an exercise of the equitable jurisdiction of a court of chancery."
See, also, Fisher v. Fisher, 78 Ohio App. 125,64 N.E.2d 328; "Legal Aspects of a Divorce Case," by Judge Frank J. Merrick, 41 Ohio Opinions, 322, 328.
Since the decision in the Huff case, the Legislature has repealed and amended a number of sections of the General Code pertaining to domestic relations, including former Section 11996, General Code. This section authorized the issuance of an injunction in certain cases, and was re-enacted as Section 8003-21, General Code, and later became Section 3105.20, Revised Code. The Legislature made some minor changes in the language of the former section, and added the following:
"In any matter concerning domestic relations, the court shall not be deemed to be deprived of its full equity powers and jurisdiction."
This amendment to the statute was considered in Dougherty v.Dougherty (1954), 97 Ohio App. 232, 125 N.E.2d 15, where an appeal was taken on questions of law and fact from a judgment for divorce and alimony. The appellant contended that the amendment to the statute (Section 3105.20, Revised Code) changed the appellate jurisdiction in divorce and alimony cases. This claim was not sustained.
Judge Hunsicker, in a well-reasoned opinion, said:
"There was no occasion for the trial court, except as to the injunction, to exercise any equity powers. Divorce and alimony are creatures of statute, and they exist in this state only by reason of legislative enactment. They do not usually call upon the courts to exercise general equity powers. They are not chancery proceedings. Marleau v. Marleau, 95 Ohio St. 162,115 N.E. 1009; Durham v. Durham, 104 Ohio St. 7, 135 N.E. 280."
We call attention to Flatter v. Flatter (1954), 71 Ohio Law *Page 160 Abs., 89, 130 N.E.2d 145, where the court held that in an action for divorce and alimony the court is without authority to make division of property. On an application for rehearing, the court considered the claim that the authorities relied on in the original opinion were released prior to the amendment to the statute, and said:
"We hold that the amendment does not affect the order dividing the property of the parties after it was found that they jointly owned the real estate and the personal property in equal proportions. The specific authority to award alimony and the extent thereof is found in the statutes. Sections 3105.17,3105.18, Revised Code.
"Partition is not contemplated and may not be accomplished in a divorce and alimony action such as we have on this appeal."
It is pertinent to note, as pointed out in the majority opinion, that upon granting a divorce, each party is barred by statute of all right of dower in real property of the other. See Sections 3105.10 and 2103.02, Revised Code.
I am of the opinion that even justice between the parties requires a reversal of so much of the judgment of the trial court as relates to the award of alimony not in conformity with the provisions of Section 3105.18, Revised Code, and also that there was prejudicial error in not entering separate findings of ultimate facts and law as requested by plaintiff.