
    No. 321
    KRISTO v. KRISTO
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6800.
    Decided Oct. 4, 1926
    413. DIVORCE & ALIMONY — Sec. 11993 GC. provides where divorce is granted upon the agression of the wife, there shall be a division of property; but where there is a motion to vacate granted to the wife upon the ground of concealment of property at time of divorce, the court cannot award alimony, as such an action is a new action and should be heard as if there had been no action pending.
    First Publication of this Opinion
    Attorneys — Fred F. Klingman for Dan Kris-to; Phillip Sampliner for Mary Kristo; both of Cleveland.
   SULLIVAN, J.

This cause comes into court on proceedings in error from the insolvency court of Cuya-hoga, wherein Mary Kristo sued for a divorce and alimony, and Dan Kristo sought a divorce on a cross petition; and later, on hearing, the petition of Mary Kristo was dismissed and a divorce granted to Dan Kristo and a division of property under the statutes was made. Subsequently a petition to vacate was filed by Mary Kristo upon the ground of concealment of property at time of the divorce and an additional sum was allowed. The question being under these facts whether alimony can be granted. The Court of Appeals held:

1. The divorce was granted on the agression of the wife, and while the court, under the statute, had authority after vacating the judgment upon proper hearing, to modify and supplement its former finding as to division of property, it does not have authority to grant alimony when same is not a further division of property.

2. The lower court was of the opinion that the evidence adduced at the hearing to vacate was only additional and therefore granted alimony without a rehearing upon the facts. This was prejudicial error because alimony being injected into the case, made it not a supplemental order, but a new matter upon which Dan Kristo' was entitled to a hearing. Brandere v. Hoffman, 46 OS. 639.

3. Sec. 11993 GC. allows a division of property when divorce is granted at wife’s agression, and does not mention alimony. Therefore when the motion to vacate was allowed, all the court could do was to make a further division of property as an action for alimony was a new action and should have been heard as if there had been no other action pending.

Judgment reversed.

(Levine, PJ., and Vickery, J., concur.)  