
    Budai v. Budai.
    (Decided July 7, 1930.)
    
      Mr. Guido Gores, Messrs. Pogue, Hoffheimer & Pogue and Mr. Walter M. Loche, for plaintiff in error.'
    
      Mr. A. B. Hoffman, for defendant in error.
   Hamilton, J.

Plaintiff in error, Wilma Budai, brought her action in the court of common pleas, division of domestic relations, against the defendant in error here, Julius Budai. The relief sought by plaintiff was that she be divorced from the defendant, restored to her former name, that the defendant be deprived of all interest by way of dówer or otherwise in her real estate, and that she be awarded permanent and temporary alimony, counsel fees, and other relief.

The defendant answered by way of a general denial, and by way of cross-petition sought a divorce from the plaintiff, and for such other relief as he might be entitled to in the premises. There was no special prayer in the cross-petition of the defendant for alimony.

Upon a hearing of the case, the trial court granted the divorce to the plaintiff upon the aggressions of the husband and in the decree released both parties from the marriage obligation, and further found that the defendant was the owner of but little or no property or means and that plaintiff was the owner of both lands and personal estate. The decree further provides as follows:

“It is, therefore, ordered and adjudged that said defendant do have and possess as and for alimony, a one-half fee simple interest in the following described real estate, subject, however, to the lien by way of mortgage of the Hillside Building So Loan Co., and subject also to a claim on the whole of the said real estate in favor of Erma Dreilinger in the sum of six hundred forty-six ($646.00) dollars, without interest, that is to say: [Here follows a description of the property.]
“And the said plaintiff is hereby ordered to convey the one-half fee simple interest in the said premises and the improvements thereon, and all the appurtenances thereto appertaining and belonging, to the said defendant, his heirs and assigns forever by good and sufficient deed in fee simple, free from any right or claim of the said plaintiff, to any estate of dower, or otherwise therein. It is further ordered that on the failure of the said plaintiff to execute said conveyance within five (5) days from the entry hereof this decree shall operate as such conveyance, and in that case it is ordered that the clerk cause so much of this decree to he recorded in the office of the recorder of this county as will show such change of title. It is further ordered that each of the said parties shall pay her or his respective costs herein.”

From that part of the decree granting an interest in her real estate, as above quoted, plaintiff in error prosecutes error to this court.

Many specifications of error are urged, most of which practically go to the question of the weight of the evidence and the abuse of the trial court in the exercise of its discretion in allowing alimony to the husband. We will dismiss those specifications as the evidence as to the contributions toward the purchase of the real estate and the respective payments for improvements and upkeep are so conflicting that we are unable to say that, if the court had the power to grant the divorced husband an interest in the wife’s real estate, it abused its discretion, or that the award was manifestly against the weight of the evidence except as to the amount of interest awarded.

However, we have had considerable difficulty with the remaining question, which is: Where the trial court decrees a divorce to the wife for the aggression of the husband, can it make an award to tbe husband in the real estate of the wife?

It is the law that the-power in the court to award alimony or make a division of property must be found in the statute. The trial court has no equity powers other than to enforce its decree granted under the authority of the statutes. The provisions of the General Code here applicable are Sections 11990, 11991 and 11992.

Section 11990, General Code, in substance provides: “When a divorce is granted because of the husband’s aggression, by force of the judgment the wife shall be restored to all her lands, tenements and hereditaments * * * and the husband barred of all right of dower therein * * *.”

Section 11991, General Code, provides for alimony in such a case to the wife. Then follows Section 11992, under which it is claimed on behalf of the defendant in error that the court had a right to decree to the divorced husband an interest in the wife’s property, notwithstanding a decree had been entered in favor of the wife because of the aggressions of the husband. That section provides: “When it appears to the court that the husband is the owner of little or no property and the wife is the owner of lands or personal estate, or both, the court may adjudge to the husband such share of her real or personal property, or both, * * * as it deems just, having due regard to all the circumstances of the parties.”

It is argued that Section 11992 would conflict with Section 11990 in such a case as the one under consideration, in that by Section 11990, under these circumstances, the wife by force of the judgment is restored to her lands, tenements, and hereditaments, and the husband barred of all right of dower therein. It would seem that under this provision of the statute, where the judgment of divorce was given the wife for the aggression of the husband, the husband by force of that judgment is barred of all right of dower in her property, and she is restored to all her lands, tenements, and hereditaments, and that if the court goes further and gives the husband an interest in that real estate by way of alimony, or a division of the property, it would qualify the express provision of the statute.

It would seem to be the logical construction of these two sections that in case a divorce is granted the wife for the aggression of the husband no alimony which would affect her interest in her own property could be allowed without interfering with her rights under this statute; that in all other cases the court might grant alimony; for instance, in a case where the divorce was refused and there was a remaining question of alimony or division of property, this Section 11992 would authorize the court to act as therein provided.

Provision is made in Section 11993 for alimony and a division of the property to the wife where the divorce is obtained by the husband on account of the aggression of the wife.

It would seem that had the Legislature intended to place the husband and wife on an equality in such cases, Section 11992 might have been just as specific as Section 11993.

It is argued that Section 11992 is a limitation on Section 11990. If this be true, and the sections should be construed together, then the law would be that where a divorce is granted the wife because of the aggressions of the husband, the wife by force of the judgment shall be restored to all her lands, tenements, and hereditaments, except that when it appears to the court that the husband is the owner of little or no property and the wife is the owner of lands or personal estate, or both, the court may adjudge to the husband a share of her real or personal property.

These two sections were formerly one section of the Revised Statutes (Section 5699), but were codified by the codifying commission and passed by the Legislature and are now separate and distinct sections. Before the codification, the section read as Section 11992 now reads, except the provision “but in any case when it appears to the court,” etc. Section 11992 omitted the language “but in any case.”

It would seem, as above stated, that the two sections should stand alone. The rights given the wife by Section 11990 should not be qualified or limited by Section 11992. Section 11992 should apply in all cases other than where the divorce is granted the wife for the aggressions of the husband, in which event, by force of the judgment, she is restored to all her lands, tenements, and hereditaments, and the husband barred of all right of dower therein; and that ownership should not be disturbed by the court after granting the decree. However, we are confronted with the decision in the case of De Witt v. De Witt, 67 Ohio St., 340, 66 N. E., 136. The reading of the opinion- in the De Witt case first leads one to the conclusion that the ownership of the wife, where she has been granted a decree of divorce for the aggression of the husband, cannot be interfered with, and that the court would be without power to award alimony to the husband or an interest in her real estate. But the court concludes its opinion with this language, page 353 of 67 Ohio State, 66 N. E., 136, 140:

“The amendment [now Section 11992], if taken unqualifiedly, is contradictory to the earlier part of the section [now Section 11990], and if the defendant desired to avail himself of its provisions, he should have made a case justifying its application. The purpose of the amendment probably is to place the erring husband in a position respecting property akin to that given an erring wife by the succeeding section, but the language is less general and noticeably more guarded.”

To understand to what the court was referring, we must go to the second paragraph of the syllabus of the opinion, which is as follows:

“The amendment of May 19, 1894, can have no application to such suit unless it is found by the court affirmatively that the condition therein expressed actually exists, viz.: That the husband has but little or no property or means, and the wife is the owner of lands or personal estate or both.”

In the De Witt case, the wife was granted the divorce for the aggression of the husband. The case was lost by the husband, as indicated both in the opinion and the syllabus, for the reason that the husband failed to bring to the attention of the court the fact that he had little or no property or means, and that the wife was the owner of lands or personal property, or both.

In the case under consideration these facts were presented to the court, as shown by the bill of exceptions, and it was found by the trial court that the husband was possessed of little or no property or means, and that the wife was the owner of the real estate in question.

It is clearly indicated in the De Witt case that had the husband shown this fact the court would have had authority under the statute to have awarded him a share in the wife’s property. While we are unable to follow the reasoning of the decision — and were this a case here of first impression we would be inclined to hold to the contrary — judicial subordination requires us to apply the principle announced in the De Witt case that upon a showing that the husband has but little or no property or means, and the wife is possessed of real estate, the court does under such circumstances possess the power to make an award of an interest in the wife’s property.

It is clear, however, that the court exceeded its power in barring the wife of dower in the husband’s estate. And, further, the evidence does not justify the award of a one-half interest in the wife’s real estate, but, based upon contribution of purchase money, does support an award of a one-third interest therein.

The judgment will therefore be modified, by eliminating therefrom the barring of dower of the wife in the husband’s estate, and by reducing the award to the husband from a one-half to a one-third interest in the wife’s heal estate, and, as so modified, will be affirmed.

Judgment modified and affirmed.

Cushing, P. J., and Ross, J., Concur.  