
    ALIMONY FOR. MAINTENANCE AND AS A SHARE OF THE PROPERTY.
    Circuit Court of Hamilton County.
    Anna Louise Madden v. John E. Madden.
    Decided, July 18, 1908.
    
      Husband and Wife — Marriage a Business Partnership — Dissolution of —Alimony—Revision of Ddcree on Account of Changed Circumstances — Termination of Allowance as of the Date of Re-marriage —Interpa-etation 'of the Words “Issttes Joined” as Used in Decree —Determination as to Character of Alimony Which w/as Allowed —Section 5103.
    
    1. While the dissolution of a marriage works the dissolution of a business partnership, a court will not on á petition for alimony alone anticipate a decree for divorce and the consequent division of the • property, unless- the. facts require it, and the judgment expressly shows that the allowance is made as a division of the property, and not for support of the wife.
    
      “2. Where the petition was for alimony alone, under Section 5702, and the allowance which was granted contained a provision for payment in monthly installments, with a reservation in the decree of the right of either party, in the event of changed circumstances', to apply to the court for a modification or termination thereof, an application by the husband for a termination of the allowance will be granted, where it appears that subsequent to the making of the allowance she obtained a divorce and married another man who is abundantly able to support her in her former state.
    3. In such a case evidence offered at the hearing for alimony, which tended to prove assistance by the wife in acquiring'the property, will be regarded as presented for the purpose only of increasing the allowance, and it will be presumed that whatever increase the evidence warranted was merged in the judgment.
    
      Charles W. Baker, for plaintiff.
    
      William Lindsay, Workum <& Bowdle and Charles B, Wilby, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The petitioner seeks to revise the decree for alimony entered February 7, 1906, and .the chief question presented is whether the allowance was intended for the maintenance or support of the wife, or a division of the husband’s property. If the latter it is final, but if the former it may be revised or terminated according to the changed .circumstances of the parties. The amended petition upon which the decree was granted was for alimony' alone under Section 5702, Revised Statutes, but contained an averment that she materially assisted her husband in accumulating his property, which averment was denied in the answer.

The court found “on the issues joined in favor of the plaintiff and that the plaintiff is entitled to reasonable alimony out of the defendant’s real and personal,property as prayed for.” It is claimed that this finding includes the issue that the plaintiff assisted her husband in acquiring his property, and that the alimony was allowed, not for the support of the wife, but as a permanent division of the husband’s property. The only issues joined which entitled the plaintiff to reasonable alimony were such only as were based upon the statutory grounds for alimony. The efforts of the'wife in acquiring the property were relevant only .to the amount or reasonableness of the' alimony and would have been considered by the court as well without as with the averment to that effect.

Suppose the court had found no statutory ground for granting alimony, would it nevertheless have proceeded to render a judgment in favor of the wife for her share of the property? We think .not, as the very nature of the ease requires such finding to support any judgment whatever.

In the case of Weidman v. Weidman, 57 O. S., 101, at 104, it is said:

“The property of the husband is usually the result of the joint efforts of both husband and wife, and upon dissolution of the marriage she is entitled to her equitable share of the property as alimony.”

The dissolution of the marriage works a dissolution of a business partnership such as is averred in the amended petition; but a court will not, upon a petition for alimony alone, anticipate a decree for divorce and the consequent division of the property, unless the facts require it, and if they do then the judgment should expressly show that the allowance is made not for support of the wife, but as a division of the property.

Convincing evidence of the character of the alimony is found in the fact that no petition for divorce had been filed; in the provision for payment in monthly installments, and in the reservation by the decree itself of the right of the plaintiff or defendant, in the event of a change of circumstances, to apply to the court for a modification or termination thereof — all tending to show the allowance was intended as maintenance.

Whatever effect may have been' given to the evidence tending to prove assistance of the wife in acquiring the property, was merged in the judgment» for alimony and only increased the amount.

The changed circumstances relied on to terminate the allowance are the divorce subsequently granted to plaintiff and her marriage to another man, who is abundantly able to support her as in her former state. It is also admitted that plaintiff claims nothing by way of support.

Our conclusion therefore 'is that the alimony be terminated as of the daté of remarriage.  