
    Cassada v. Cassada.
    (Decided September 29, 1930.)
    
      Mr. Chester 8. Durr, for plaintiff in error.
    
      Mr. Louis F. Britten, amicus curios.
    
   Hamilton, J.

This is an action for divorce brought by plaintiff, Bradford Cassada, against the defendant, Adeline Cassada.

The petition charged extreme cruelty, gross neglect of duty, and adultery. The defendant wife is a nonresident of the state of Ohio, and service was made by publication. No answer was filed by the defendant, nor did she appear to contest the case by pleadings, or by witnesses.

The husband, plaintiff, gave testimony supporting all the allegations of the petition. He was corroborated by two witnesses and exhibits in the nature of letters from the wife in Charleston, West Virginia, to the. plaintiff husband. Another letter exhibit from a woman in Huntington, West Virginia, concerning the status of the child, the offspring of the parties in the case, is also attached as an exhibit. While this letter may not have been competent had it been objected to, it was not objected to, and is in the record, and it throws additional light on the circumstances to support the claim of the plaintiff husband.

The court refused plaintiff a divorce notwithstanding the undisputed and convincing 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 curias brief of the assistant prosecuting attorney the court in its discretion, notwithstanding the evidence in the case, may refuse a divorce, and such action will not be ground for a reversal; that his discretion cannQt 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 his charge that the husband’s failure to send money to the wife to support the child was evidence of his abandonment, are 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 confines of the state is taken care of by the laws of Ohio, and any divorce granted would not in any way 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.

Judgment reversed and cause remcmded.

Cushing, P. J., and Ross, J., concur.  