
    Ready v. Ready.
    
      Divorce and alimony — Divorce decree procured by fraud and irregularity — Motions to petition pending when divorce granted — Affidavit for service by publication insufficient and defective — Jurisdiction of nonresident defendant not acquired without serving petition and summons — Section 11294, General Code — Leaving copies of petition and summons with defendant’s attorney, insufficient — Nonresident defendant not in court unless statutory notice of action given — Divorce decree null where plaintiff nonresident of Ohio — Section 11980, General Code — Subsequent remarriage not bar to vacating divorce decree — Court of Appeals may review divorce proceedings.
    
    1. Where, at time of granting divorce, defendant had not been heard on her motion to make the petition more definite and certain, the irregularity held sufficient for vacation of the decree.
    2. Where affidavit to support service by publication in divorce action did not assert that service according to law could not be made upon the defendant in Ohio, and that the defendant was a nonresident of the state, the notice was, in view of the statute, fatally defective and insufficient to give court jurisdiction of defendant.
    3. Where, in divorce proceeding, only notice to nonresident defendant was by sending her the published notice of the filing of the divorce petition unaccompanied by a copy of the petition and summons, as required by Section 11294, General Code, court acquired no jurisdiction over defendant.
    4. Under Section 11294, General Code, relative to service on nonresident defendants in divorce actions, leaving a copy of the summons and of the petition with defendant’s counsel instead of sending them to defendant is not compliance with the statute.
    5. A nonresident defendant in a divorce action is not in court unless plaintiff fully and completely conformed to the provisions of the statute as to giving notice of the action.
    6. Where plaintiff in a divorce action was not a resident of this state at the time of the filing of his petition or granting of the divorce decree, as required by Section 11980, General Code, the decree was a nullity.
    7. In view of fact that plaintiff had perpetrated fraud in filing petition for divorce and had remarried in the midst of error proceedings on his' case, public policy held not to make fact of such subsequent marriage a bar to vacation of the divorce decree.
    8. The Court of Appeals has power and authority to review, reverse, or affirm divorce proceedings and decrees where fraud and irregularities are alleged.
    (Decided June 13, 1927.)
    Error :. Court of Appeals for Cuyahoga ■ county.
    
      Messrs. Bartholomew, Leeper & McGill and Messrs. Gull, Burton S Laughlin, for plaintiff in error.
    
      Mr. Robert J. Selser, for defendant in error.
   Sullivan, P. J.

This cause is here on error from the court of common pleas of Cuyahoga county, and it is sought to reverse the judgment of the lower court for committing prejudicial error in denying a motion made by Frances T. Ready during term for the vacation of a decree of divorce granted to one James Ready, defendant in error herein, who was plaintiff in a case wherein Frances T. Ready, plaintiff in error, was the defendant. The basis of the motion was fraud and irregúlarity ’ under the statute.

A primary legal question in the case is whether a divorce decree can be set aside for irregularity and fraud by plaintiff, even though subsequent to the divorce a remarriage takes place on the part of the party plaintiff, who was granted the decree. The question involves the contrast in judicial power with respect to cases of this character existing prior to the Constitution of 1912 and those arising subsequent to the adoption of its provisions. The question also involves the issue whether, in the denial of the motion to vacate, there was an abuse of sound discretion.

The lower court held that as to the divorce the judgment of the common pleas court was a finality, and then proceeded to hear the question of irregularities; but the record discloses the issue of fraud on the part of plaintiff, which is based upon the claim that when the petition for divorce was filed and the prayer granted the plaintiff was not a bona fide resident of the state of Ohio, but was a legal resident of the state of New York.

It appears from the record that when the divorce was granted, there were two motions of an essential nature filed in the case by the defendant, one to make the petition more definite and certain, because the allegations as to the causes for divorce were naked and unsupported in any manner by any facts, and the other relating to counsel fees and expenses and the taking of depositions. Thus it is clear that the cause assumed the character of what is known, under the rules of the court of common pleas, as a contested divorce action.

The cause was heard and the divorce granted, according to the record, without these motions having been decided, and was tried as though it were of the nature of an uncontested case. However, there is a conflict as to this. The filing of the motion created a record which imposed obligations upon counsel with respect to the question of proceeding to the hearing of any material issue, or to the determination of the case finally, without conforming to the traditional custom of notifying counsel of record as to all material steps taken in open court concerning the cause. "When counsel becomes attorney of record for parties in litigation, there ensues a judicial duty upon the court, as well as a professional one on the part of counsel, that counsel shall receive due notice, both under the rules and otherwise, as to all essential steps in the case especially arising in open court. This situation existed at the time of the granting of the decree, and it is our judgment that under the record in the case there was an irregularity sufficient in the exercise of sound discretion to vacate the judgment and decree, for the dissolution of the marital tie and family relationship especially demands that the contending parties shall be made fully aware of these vital steps in the course of the proceedings. The court below considered the petition sufficient in law, apparently, as it did not consider the motion as a bar to proceeding. It is our opinion, where motions are pending which are not of a dilatory, but of a substantial, character, that obedience to the ancient rule of the law, to-wit, orderly procedure, must be respected, and failure to observe this sound rule of law is a breach of the rights of the party complaining, because if he has not had a hearing upon his motions, especially when they are of a vital nature, then he has not had that fair and impartial hearing which he is entitled to under the law. In the instant case it was absolutely necessary, in order to prepare a defense, that the facts supporting the charges should be recited in the petition, and it was to this end that the motion to make the petition definite and certain was made. The learned court, however, thought otherwise.

It also appears from the record in the case that, notwithstanding the provisions of the statute, the affidavit to support service by publication was •fatally defective in that it did not assert that service according to: law could not be made upon the defendant in Ohio, and that the defendant was a nonresident of the state of Ohio. On this infirm affidavit service by publication depended, but this weakness in the affidavit is followed by the additional fatality that instead of sending the paper which contained the publication of notice, together with a copy of the summons and the petition, to the defendant at her known place of residence in New York, nothing but the paper itself, as appears by the docket, was ever sent or received, and thus arose the violence to the provisions of the statute (General Code, Section 11294), which specifically require, in service by publication, that a copy of the summons and a copy of, the petition shall be directed and sent to the defendant at the last place of residence, or to the place designated in the affidavit as such.

It is claimed that later on a copy of the summons and petition was left with defendant’s counsel, but this is not compliance with the statute, and especially is it of no avail in divorce cases, where under the doctrine of collusion, under the record in this case, there is no such thing as an entry of appearance by counsel. The defendant in a divorce suit in Ohio is not in court without full and complete conformity to the provisions of the statute on the part of the plaintiff.

In our judgment, there was no service of a lawful character upon the defendant. The decree therefore is void, or at least voidable, and the reason for its nullity is apparent in the record, to-wit, that the plaintiff was not a resident of Ohio at the time of the granting of the divorce, nor had he been a citizen of the state for one year preceding the application for divorce, as required by the statute (G-eneral Code, Section 11980). On the contrary, it affirmatively appears that he was a resident of the state of New York; that shortly before the granting of the divorce he had been a candidate for office in a certain county in the state of New York; and that for 30 weeks at least, out of the 52 of the year preceding the divorce, he had spent his week-ends in New York, in a manner which, according to the record, does not add to his credibility. It is our opinion that the decree for divorce was null and void, but, if we are not correct in this position, there certainly can be no doubt that, with such a challenging fact in the record, the defendant on her motion to vacate was entitled to the relief for which she asked. If the party defendant was in court the question of the power of the court to vacate the decree because of sound public policy becomes immaterial, because under such circumstances we are not discussing the subject of a divorce, but of a pretended divorce.

It is argued on the grounds of public policy that as the plaintiff had remarried, the motion to vacate necessarily had to be denied. That conclusion is reached upon the theory of the law as it existed prior to the Constitution of 1912, which is contrary to the established doctrine in Ohio at the present time. See Huntington & McIntyre v. Finch & Co., 3 Ohio St., 445, 447; Knox County Bank v. Doty, 9 Ohio St., 505; Parish v. Parish, 9 Ohio St., 534; Zonars v. Zonars, 101 Ohio St., 518, 130 N. E., 943; Cox v. Cox, 104 Ohio St., 611, 136 N. E., 823; Wells, Jr., v. Wells, 105 Ohio St., 471, 138 N. E., 71; Cox v. Cox, 108 Ohio St., 473, 141 N. E., 220.

The following opinion was rendered in the case of Zonars v. Zonars by the Court of Appeals of Montgomery county on July 3, 1919:

“The sole question in this' case is the jurisdiction of the Court of Appeals to review a decree granting a divorce. Counsel for plaintiff in error have presented a very plausible argument in favor of their contention. Counsel for defendant in error have also ably supported their contention that this court does not have jurisdiction.
“We are not without doubt, but upon full consideration we have reached the conclusion that the opinion in the case of Pappalardo v. Pappalardo, 6 Ohio App., 291, decided January 1, 1917, should be followed. This decision was made by the Court of Appeals of the First District more than two years ago. The case was not taken to the Supreme Court, and no other case involving the question has to our knowledge reached the Supreme Court. We are of .opinion, therefore, that the proceedings in error should be dismissed.”

But in Zonars v. Zonars, 101 Ohio St., 518, 130 N. E., 943, the Supreme Court held that the Court of Appeals had jurisdiction, and in Cox v. Cox, 104 Ohio St., 611, 126 N. E., 823, the Supreme Court held that the Court of Appeals had the power to review, affirm, or reverse the order of the common pleas court denying the motion to set aside a judgment rendered in said court.

Cox v. Cox, 108 Ohio St., 473, 141 N. E., 220, cites the Cox case, 104 Ohio St., 611, 136 N. E., 823, and leaves no question as to the power and authority of the Court of Appeals to review, reverse, or affirm in cases like the one at bar. The same doctrine is also laid down in Wells, Jr., v. Wells, 105 Ohio St., 471, 138 N. E., 71.

Touching, however, upon the question of public policy, it would be much sounder public policy to annul a divorce secured by positive, actual, and premeditated fraud on the part of a litigant who comes into Ohio from a foreign state to secure his marital freedom, when it cannot be done in his own, than to condone, because it involves the legality of a remarriage based on the high-handed fraud on the part of the litigant, falsely asserting residence. It appears, however, in the record, that in the instant case the remarriage was solemnized in the midst of proceedings in error in the Court of Appeals, and therefore the plaintiff made his remarriage with his eyes open and with full knowledge of the chance and peril attendant thereupon, even after caution by his Cleveland counsel.

Holding these views, it is our unanimous opinion that the judgment of the lower court should be reversed.

Judgment reversed.

Vickery and Levine, JJ., concur.  