
    CASSADA v CASSADA
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3627.
    Decided Sept 29, 1930
    Chester S. Durr, Cincinnati, for plaintiff in error.
    Louis F. Britten, ’ Cincinnati, Amicus ■Curiae.
   PER CURIAM:

The Court refused plaintiff a divorce notwithstanding the undisputed and convine-'' ing proof produced by the plaintiff of the charges alleged in the petition. -This was error on the part of the court, unless as claimed in an amicus curiae brief of the assistant prosecuting attorney that not- . withstanding the evidence in the case, the court, in its discretion, may refuse a divorce, and that action is not ground for a reversal; that his discretion cannot be disturbed. We do not think this view tenable. , If the granting of a divorce may be reversed on the weight of the evidence by a reviewing court, we see no reason why his refusing 'a divorce may not likewise be reviewed on the weight of the evidence, and his judgment reversed.

The point made by the trial court that to grant the plaintiff husband a divorce would be to encourage his abandonment of the child, 'and charging his failure to send • money to the wife to support the child evidence of his abandonment is not justified* under *the evidence. ’

The evidence is that he followed his wife endeavoring to get" her to return and live a decent life with him and the child, and this is established by the fact that he followed her to Detroit and then to Columbus, and each time she disappeared with the child.

Moreover, the law is. that his liability for the support of the child when in the com fines of the state is taken care of by the laws of Ohio, and any divorce granted would not in any w,ay affect, this obligation.

In view of the undisputed and clear proof of the violation of the marital vows on the part of the wife, as alleged in the petition, the judgment of the court of common pleas, division of domestic relations, will be reversed, set aside, and held for naught, and the cause will be remanded to that court with instructions to enter a decree of divorce in favor of the plaintiff husband.

Cushing, PJ, Ross & Hamilton, JJ, concur.  