Family Law Keyed to Weisbergback
Brief Fact Summary. Plaintiff suffered a sever stroke, with resulting disagreements causing defendant to move into an adjacent travel van on the property. Plaintiff sued for alimony only, defendant countersued for divorce alleging the couple lived separate and apart for more than two years.
Synopsis of Rule of Law. A cessation of marital duties and relations is required in order to prove that a married couple has lived separate and apart without cohabitation.
Facts. Plaintiff, Mary Bennington, and defendant, Larry Bennington, were married in 1946, with no children born to the marriage. In 1963, plaintiff suffered a stroke rendering her permanently and totally disabled. There were no sexual relations since that time. In 1974 defendant moved out of the house into a travel van located adjacent to the house. He did so because his wife kept the heat in the house at about 85 to 90 degrees and she locked and bolted the door to the house, taking fifteen to twenty minutes to come to the door to let him in after work. There were other areas of conflict, but no intention on the part of defendant to abandon his marital responsibilities during this move. He continued to help with household chores and entered the house regularly to assist his wife. On November 26, 1976, defendant became thoroughly disenfranchised and moved to Arizona for about one month. He returned, but lived off of the premises in the van for three months before getting his o
wn apartment. Plaintiff commenced an action for alimony only, claiming gross neglect of duty and abandonment. Defendant denied grounds for alimony and counterclaimed for divorce alleging as amended living separate and apart for at least two years without cohabitation.
Issue. Was the trial court correct in determining that the parties were living separate and apart during the time that husband lived in the van adjacent to the house?
Held. The trial court erred in this determination because there was no cessation of marital duties and relations, therefore, they were not living separately in the marital sense.
Ohio law provided grounds for divorce when a husband and wife live separate and apart without cohabitation without interruption for two years.
Discussion. Although the marriage relationship was abnormal, the Court based its decision on the fact that approximately the same duties were performed by the husband to the wife and vice versa both before and after the move to the van.