dissenting:
I dissent from the judgment of reversal and disagree with the conclusions drawn by Judge Barnes to support his opinion respecting the assigned errors.
In fairness to the parties, their counsel and, especially the trial judge, who may have to try this case again and is entitled to our view of the law because of the difficult questions presented, and as it is our obligation to pass on each error assigned, §12248 GC, I shall express my opinion on all of them.
THE ISSUES.
The basic questions on this appeal relate to the issues and the effect of the Reno divorce decree.
It is common practice for courts to indulge in great liberal-' ity of procedure in divorce and alimony trials.
I agree, that upon the pleadings, no issue is drawn as to the validity of the divorce decree to defendant. This does not invalidate the judgment and any necessary amendment of the pleadings to conform to the evidence upon which the judgment was entered may be made even in this court.
It conclusively appears that, by common consent and with*120out the interposition of a single objection to the testimony on the subject, the question of the existence and the effect of the Reno divorce decree was projected into the case, fully tried and upon the facts developed adjudicated, and was, and still is, the subject of most of the difference of viewpoint as to the applicable law.
If a case is fairly tried, submitted and decided upon issues not in reality raised by the pleadings, it is then too late to raise objection thereto. Larimore v Wells, 29 Oh St 13; Bacon v Daniels, 37 Oh. St. 279. The parties having without objection by the factual development made the issue as to the existence, validity and effect of the Reno divorce decree, pages 503, et seq. of the bill of exceptions, it may not at this late date be withdrawn, nor do I understand that counsel for appellant insist that it is not an issue.
It must be kept in mind, that when the petition was filed the divorce had not been granted to the defendant. The petition is lengthy but, in part; avers that the defendant abandoned the plaintiff without just cause, and that he is chargeable with gross neglect of duty, both of which grounds were found by the trial judge to have been proven and no appeal is prosecuted by the defendant.
Some of the facts which it is alleged constitute the charges against the defendant are:
1. The defendant has attempted to prevail on plaintiff to aid him in fraudulently securing a divorce in Reno, Nevada.
2. Defendant has brought an action for divorce in Reno, that it is pending but no valid cause or grounds now exist or ever have existed upon which the defendant can obtain a divorce from plaintiff.
3. No service of summons has been made upon plaintiff and she has not entered her appearance in said action and the Nevada court has no jurisdiction of the subject matter of said action or of the plaintiff.
When the cause came on to be tried the decree in Nevada had been granted to defendant but it was not brought into issue by any pleading.
It will also be observed that the petition does not aver that the defendant had no bona fide domicile in Reno, but that, because plaintiff had not been summoned and because she had not-entered her appearance the court did not have jurisdiction.
It becomes evident then, that any issue as to the lack of jurisdiction of the Nevada court because the defendant had no domicile there, came into the case not upon the petition but by the factual developments which first the plaintiff and then the defendant produced and submitted to the court.
*121The averment that the defendant had no cause of action for divorce against plaintiff, if proven, under the authority of Haddock v. Haddock, supra, would have invalidated the decree. As the Williams case was not decided until November, 1942, and the - petition here was filed in June, 1942, it is probable that counsel framed it in the light of Haddock v. Haddock. This is the issue that went out by the decision in the Williams case.
THE LAW OF THE CASE.
Judge Barnes devotes twenty pages to the law of this case as it affects the Reno divorce decree and counsel have briefed the question at length. He correctly, in my opinion, concludes that the case of Williams v. North Carolina, supra, does not overrule Bell v. Bell, supra, and holds that a decree of divorce is not entitled to full faith and credit under the federal Constitution when it has been granted on constructive service by a court of a state in which neither spouse is domiciled. In other words, he holds that the jurisdiction of the Nevada court could have been raised and considered by proper pleading in the instant case.. This construction of the Williams case is in conflict with Slapp v. Slapp, supra.
Notwithstanding the extended elucidation of the law in the principal opinion, I am unable to find any tenable support for the claim that the trial judge was mislead by any of the cited cases as to the law of this case. At no place does he cite the Williams case or make any comment from which it may be inferred that he felt that he was precluded from trying the question of the jurisdiction of the Nevada court. The rceord is conclusive to the contrary, ese pages 50Í-508, inclusive; 758-761, inclusive.
Findings of law and fact taken from the written opinion of the court are on file. If the trial judge misinterpreted the law, or drew an improper conclusion from the facts, upon the question of the domicile of the defendant in Reno, or upon the right of the court to consider this question as it affected the validity of the decree, why were these questions not made the subject of specific findings of law and fact.
Moreover, it clearly appears that the trial judge did consider the question of the domicile of defendant as it affected the jurisdiction of the Nevada court to render the divorce decree. In his opinion and in the findings of law and fact, he says:
“The Court does find, as a matter of fact, from the evidence adduced here that a divorce was granted in Reno, and that from the evidence submitted in this case, that Court did *122have jurisdiction as required by the laws of the State of Nevada in compliance with their laws.” (Emphasis ours.)
Finally, the appellant does not claim that the court did not consider the question of the validity of the Reno decree on the evidence, as to the residence of defendant, but that his conclusion with respect thereto is erroneous.''
THE QUESTION OF JURISDICTION OF NEVADA COURT.
We may not say, as a matter of law, that the defendant had no domicile in Reno.
Upon the introduction of 'the Nevada divorce decree the defendant made a prima facie case which was sufficient, standing alone, to support its regularity and validity in every essential, including the jurisdiction of the Court, 14th syllabus, Williams v North Carolina, supra.
Upon this prima facie case, the further supporting testimony and the conflicting inferences to be drawn from the correspondence and testimony of the parties, there is an issue of fact which may not, as a matter of law, be resolved against the defendant.
As to the effect of the introduction of the decree, see Cardindale v Cardindale, (Cal.) 68 P. 351; Miller v Miller, (Mass.) 150 So. 112; Renner v Renner, 181 Atl., 191; Davis v. Davis, 8 P. 2d, 286; Jenkins v Jenkins, (Ala.) 194 So. 493; Warren v Warren, (Cal.) 15 P. 2d, 556; State v Cooke, (Conn.) 148 Atl., 385; Grein v Grein, (Ill.) 25 N. E. 2d, 409; State v Williams, et al., (Unreported), Supreme Court, North Carolina, Spring Term, 1944.
The majority in Williams v State of North Carolina, upon facts much stronger against the divorcees than here upon the question of their domicile, would not say, as a matter of law, that they did not have a domicile in Nevada where their decrees were rendered. True, Justice Douglas, in the majority opinion, stated as one reason for recognizing the jurisdiction of the Nevada Court, that North Carolina was not urging the claim that the record established that the divorcees had no domicile where their decrees were granted, but this was not a sufficient reason for reversing the judgment, if, as a matter of law, as held by Judge Barnes in this case, the defendants had no bona fide domicile in Nevada. Justice Frankfurter, in his concurring opinion, likewise refused to follow the law as announced by the principal opinion in this case.
Moreover, in the instant case, there is, independent of the effect of the decree of divorce, a factual issue as to the *123'bona fides of the domicile of defendant in Reno. Briefly, some of the facts, which must, on the question now before us, upon defendant’s testimony be given favorable interpretation to him are, that he left his former home to get a divorce with the knowledge of his wife and to avoid publicity of his claim and resulting embarrassment to her; that he had a cause of action, which in his judgment, would have supported a decree in his behalf if his suit had been begun at New Lexington; that he went to Reno with the intention of making it his home; that he rented an apartment and had some of his effects in it; that he retained his apartment in Reno and had it at the time of the trial in the instant case; that he registered for selective service, and to vote, in Reno; that he considered it his home, expected to return there and came East because of the necessity of defending the suit for alimony instituted against him by his wife and which suit affected all of his property interests in Ohio.
The defendant was actually present in Reno for a period of time sufficient to meet the legal requirement as to domicile there, if it was coupled with the requisite intention. It is fundamental that the question of one’s residence, in part, is a matter of intention and it is common knowledge that many men have their domicile at a place where they are infrequently present. It is correct to say that if the defendant went to Reno for the sole purpose of securing a decree of divorce and with no intention of establishing and maintaining a residence there, the Court had no jurisdiction, but if he went there- for the purpose of getting a divorce and with the knowledge that he was not entitled to invoke the jurisdiction of any court there unless he had a bona fide residence and domicile and intended to and did establish such a residence, then the Court had full jurisdiction to grant his decree.
“Intention to acquire a new domicile, and not purpose in making change, is pivot on which inquiry turns as to whether party had obtained domicile in another state for purpose of obtaining divorce decree.” Renner v Renner, (N. J.) 181 Atl. 192.
RIGHT OF COURT TO MAKE DIVISION OF PROPERTY.
The principal opinion holds that because the plaintiff did not pray for a divorce, even though divorced by the Reno decree, upon the authority of Durham v Durham, 104 Oh St 7, the trial judge was without authority to make division of defendant’s property, award part thereof to plaintiff and make determination of the full rights of the parties as to the property. This was my first impression which upon more mature *124consideration I have abandoned for' two reasons: First, upon the authority of Slapp v Slapp, supra, and upon the logic of the opinion, of Judge Hart in the case, the court could properly make equitable division of defendant’s property having first found that plaintiff had grounds for divorce, but that because of the Reno decree to the defendant and because She did not pray for divorce, it could not be granted to her.
The facts in the Slapp case are fully set out in the majority opinion and I shall not restate all of them. Suffice to say, that when plaintiff’s ease went to trial she had prayed for divorce and alimony. When it reached the Supreme Court, because the plaintiff had not appealed, the question-as'to-the validity of the defendant’s decree of divorce was no longer in the case and the Supreme Court had to reconcile it as valid. However, it was urged by the defendant that, as a decree of divorce had not been and could not be granted to the plaintiff, the Court could not under the Durham case make division of the property. The Court held that the Durham case did not apply, and that the trial judge did not err in granting a decree for permanent alimony which included a division of property. Judge Hart directs attention to the fact that a decree of divorce had been given to the defendant, and that this supported an award of permanent alimony to' her upon her proof that she had grounds for a divorce even though it could not' be granted to her.
In this case, the parties were divorced though plaintiff did not seek such a decree. She established grounds for permanent alimony and divorce and1 was entitled t.o the benefits thereof which the Court awarded to her from the property of the defendant. It was not done upon the theory upon which plaintiff instituted her suit, but upon the facts, developed and the law controlling and, as both parties were before the Court, the relief granted was appropriate.
The second ground supporting the right of the trial court to divide .defendant’s property is predicated upon the admission of counsel for the plaintiff that the court had that right, if he found the Nevada divorce decree to be valid.
At the conclusion of plaintiff’s ease the court had under consideration a motion of defendant to require her to elect upon which of two claimed theories she would submit her case. Court and counsel were discussing the matter at page 503 of the record:
“MR. GINGHER: Well he (the defendant) testified that he has remarried since. •
*125THE COURT: Yes, he has since remarried. That would support the fact that there was a divorce, I don’t believe that alone — I don’t know whether that divorce is good, whether they had jurisdiction to grant him a divorce—
MR. CHESTER: Do you say that we have the burden of establishing what happened out there? You brought the suit — .
MR. GINGHER: We brought the suit before the divorce, if any, was granted.
MR. CHESTER: Have you leave to amend your petition?
THE COURT: They don’t have to amend, I don’t believe. I think they can proceed upon the alimony question; the property rights might be established on another suit, if there was a divorce at some future time, she would still hold an interest in the property. I have no knowledge at the present time of any divorce being granted. There has been some testimony which might indicate there was a proceeding in Nevada, but that is all — that is all.”
MR. GINGHER: If Your Honor please, I don’t know of 'any reason why they should require us to elect.
THE COURT: I don’t think there is anything to elect here. You have elected by instituting your action for alimony. Now, whether or not they care to offer evidence and whether they offer evidence to the effect that there has been a divorce granted, if they offer evidence and show a divorce has been granted, then the court might make an order — might dissolve all property rights.
MR. GINGHER: That is right.”
And at the bottom of page 506 and at page 507:
The Court addressing Mr. Chester:
“Well, at this time, if you offer no further evidence, the Court could only award alimony from this evidence. I am not so certain but what the election, if there is an election, will fall upon you as to whether or not you are going to defend and assume the position that these parties are still married, or assume the position that they are divorced. Now, if you offer evidence to show that they-are divorced; if you show that the relationship of husband and wife is severed, then the Court would have the right to sever all property rights.”
„■ MR. CHESTER.: “* * Now if we offered testimony to the effect that this man is divorced, then by that we have elected under the divorce section, is that right? * *
THE COURT: Well, you have elected to proceed to show that there was a divorce and the Court would have authority *126to determine and fix all property rights as between the parties.”
MR. McNAMARA: If you are satisfied that a valid decree of divorce was entered.
THE COURT: That is right.
MR. CHESTER: Well, is this Court going to find out if there has been a divorce granted?
THE COURT: I don’t know — if you offer here a judgment of the Nevada Court to the effect that a decree of divorce has been granted to this party, then the Court, I believe, must accept that, .unless there is a showing of no jurisdiction; that would be the only way in which there could be an attack made by this court, that is, the collateral attack would be by lack of jurisdiction, then that would be upon the plaintiff here.” (Emphasis ours.)
Because of the position of counsel for plaintiff that the Court had the right to make division of the property of defendant, if he properly found that defendant had been divorced, plaintiff may not be heard in this Court to urge another and different view of the law. Larimore v Wells, 29 Oh St 13; Bacon v Daniels, 37 Oh St 279; Sprung v E. I. DuPont de Nemours & Co., 16 OO 352, 34 N. E. 2d, 41.
Finally, in fairness to counsel for appellant, it should be said that there is no change in their position here from that taken in the trial court, as appears from plaintiff’s brief, page 20. • -' ~>.
AWARD.
• Upon this assignment it is not a question whether the members of this Court, if hearing the cause originally would have awarded a greater sum of money to the plaintiff but, does it clearly appear that the trial judge in weighing the evidence, as he had the right to do, manifestly misconstrued its effect and made an inadequate or an inequitable apportionment of defendant’s property to the plaintiff. I cannot so find.
The parties at the time of the award had been married four years. The defendant’s holdings were highly speculative in character and subject to possible marked depletion after the conclusion of the war. The Court fixed the worth of defendant at from $125,000 to $200,000 with an income of $22,000 to $34,000 for the last year prior to the trial. The award to plaintiff was $21,500 in cash and the cancellation of a debt which she owed the defendant in the sum of $3100 or a total of $24,600 from which she was to pay her court costs and attorney fees. At. the time that the plaintiff married defendant the Court estimated her worth at approximately $15,000. At the time of the hearing it had increased to $25,000'to $45,000 large*127ly because of investments which she had made upon the suggestion of the defendant. When married her income was' about $800 a year. At the time of the trial it had increased to about $8000 or more a year, so that much of this increase, no doubt, could be attributed to the marital association between the parties. Considering all the facts, we would not be justified in remanding this cause for retrial because of inadequacy of the award.
JUDGMENT.
There is no reversible error in the action of the trial court in any one of the four errors discussed in the briefs of the parties. The judgment of the trial court should be affirmed.