
    Fessenden v. Fessenden.
    
      (Decided October 29, 1928.)
    
      Mr. Lee J. Myers, for plaintiff in error.
    
      Mr. Carl M. Myers, for defendant in error.
   Houck, P. J.

The plaintiff, Cloyd Fessenden, brought suit against his wife, Mary Fessenden, for divorce, based upon willful absence, gross neglect of duty, and cruelty. Plaintiff alleged in his petition that “the defendant has obtained an order from the Court of Common Pleas of Summit County, Ohio, in which this plaintiff is ordered to pay the sum of Ten Dollars ($10) per week alimony indefinitely and that he is unable to pay this amount continuously as there is money due on his home and that he is not able to work and earn as much as he did in the past.”

The prayer of the petition is as follows: “The plaintiff prays that he be granted an absolute decree of divorce from this defendant and that the court vacate the order heretofore granted by the Court of Common Pleas of Summit County, Ohio, and that the respective rights of this plaintiff and this defendant of all property owned by the plaintiff at this time be adjusted by the court and that this plaintiff be granted such other and further relief as may be just and equitable. ’ ’

The answer sets up three defenses: First, a general denial; second, challenges the jurisdiction of the court in the premises; and, third, sets up a former suit and adjudication between the parties hereto, in which the defendant here was decreed alimony by the common pleas court of Summit county, Ohio, in the sum of $10 per week, which decree is still in full force and effect.

The reply is in the nature of a general denial.

Trial was had and a decree of divorce was granted plaintiff on the ground of gross neglect of duty, and alimony was allowed defendant in lieu of the Summit county common pleas court decree.

A reversal of this judgment is sought upon three grounds: First, that the court erred in refusing to hear the defendant’s witnesses, and therefore was guilty of an abuse of discretion; second, that the judgment is contrary to law; and, third, that the judgment is manifestly against the weight of the evidence.

We have read all of the evidence offered in the trial, as appears in the bill of exceptions. Reviewing courts are bound by the record, and the conclusion we have reached is based wholly and entirely upon the record now before us in review.

An examination of the record discloses that but two witnesses testified in the trial. The plaintiff was called as a witness in his own behalf, and, after he had testified, the trial judge on his own motion called the defendant to the witness stand, and, after she had given testimony, the trial judge said: “I will grant him a divorce on the ground of' gross neglect of duty, and order him to pay a lump sum of $50, and $10 a week until the first of April, 1929. You may have exceptions.”

Thereupon counsel for defendant requested the court for permission to offer other witnesses to testify in behalf of defendant, which the court refused, and defendant excepted. Did the trial judge err in refusing to hear the testimony of defendant’s witnesses, and was he guilty of an abuse of discretion by such refusal?

As laid down in the books, there are different kinds of discretion that may be exercised by the trial court. There is the discretion in the sense of the exclusive right to decide as that court pleases, which will not be reversed by an appellate court. There is a discretion in the decision as to what is just and proper under the circumstances. The latter kind of discretion will not be reversed unless there was an abuse of it; that is, when it clearly appears it was exercised on grounds or for reasons clearly untenable, or to an extent clearly prejudicial to the rights of the complaining party. That would be its abuse. In all cases courts must exercise a discretion in the sense of being discreet, just, circumspect, prudent, and exercising cautious judgment.

We are inclined to believe that the trial court abused its discretion in not permitting defendant to offer testimony of witnesses in her behalf. It will be observed that but two witnesses testified— the plaintiff and the defendant. Litigants are entitled to a fair and impartial trial, and in order to have this their witnesses should be permitted to testify, under the rules of the court, within the proper bounds of judicial discretion, and under the law governing testimony of witnesses. Parties to the suit are entitled to testify, if qualified under the law, and counsel are entitled to be heard. These are not only statutory, but the constitutional rights of litigants. It follows that the trial judge was guilty of an abuse of discretion, which is erroneous, and of a prejudicial nature to the plaintiff in error.

Is the judgment contrary to law?

The decree entered in this case attempts to set aside, and in legal effect to vacate, a former decree of alimony entered in the Summit county court of common pleas, between the parties hereto; the courts being of concurrent jurisdiction. This was and is contrary to law, for the reason that the trial judge in the instant case was without legal authority to vacate, set aside, or modify the decree of alimony entered in Summit county.

Is the judgment against the manifest weight of the evidence?

A careful reading of the testimony clearly satisfies us that the proof was not and is not sufficient in law to grant the relief prayed for by plaintiff, and that the judgment is therefore manifestly against the weight of the evidence.

Keeping in mind that the subject-matter of this lawsuit is divorce, and all of the incidents thereto, it is apparent that it is one of importance not only to the parties to the suit, but to society in general.

“It must be remembered that marriage is a contract having its origin in the law of nature, antecedent to all civil institutions, but adopted by all political society, and charged thereby with various and numerous civil and religious obligations. It is founded upon mutual consent, which is the essence of all contracts; and is entered into by two persons of different sexes, with a view to their mutual comfort and support, and for the procreation of children.
“Hence, under the laws of our state, this contract cannot be broken and violated without the one who does so being called upon to answer for such conduct, and, as far as possible, being compelled to answer to the party to the contract who has been wronged.” Hine v. Hine, 25 Ohio App., 120, 123, 157 N. E., 308, 309.

We do not think it necessary to prolong a discussion of the record facts, or the law pertaining to them, because the facts as contained in the record are as familiar to the parties and counsel as they are to the court.

The conclusion of the court is unanimous in finding that the judgment of the common pleas court is manifestly against the weight of the evidence, and contrary to law. The judgment of the lower court is therefore reversed, and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Sullivan and Lemert, JJ., concur.

Judges Houck and Lemert, of the Fifth Appellate District, and Judge Sullivan, of the Eighth Appellate District, sitting in place of Judges Washburn, Funk and Pardee, of the Ninth Appellate District.  