Robert J. Dudon v. Geraleen Dudon

Dayton, Ohio family law lawyers represented the parties in a divorce.

Geraleen Dudon appeals from a final judgment and decree of divorce which terminated the marriage of the parties. She asserts as her assignment of error that the trial court erred by granting a divorce on the ground of incompatibility. She claims that the trial court erred in granting a divorce on the ground of incompatibility because she did not agree that the parties were incompatible. See R.C. 3105.01(K).



Although we agree with Mrs. Dudon that a trial court cannot grant a divorce on the ground of incapability unless both parties agree that they are incompatible, we nevertheless affirm the judgment of the trial court on the basis of the following discussion.



Mr. Dudon filed his complaint for divorce on February 3, 1992, alleging as his ground for divorce that he and Mrs. Dudon were incompatible. The matter came on for hearing May 21, 1992, at which time the trial court permitted Mr. Dudon, over the objection of Mrs. Dudon, to amend his complaint for divorce to allege the additional grounds of extreme cruelty and gross neglect of duty. Mrs. Dudon does not assert in this court that the trial court erred in permitting Mr. Dudon to amend his complaint at bar.



Following the testimony of the parties and a corroborating witness relating to grounds for divorce, the court announced its decision as to grounds for divorce from the bench as follows:



The Court is prepared to rule. The Court has reviewed Plaintiff's Exhibit 1, which consists of letters written by the defendant, and also the testimony from both the plaintiff and the defendant and the corroborating witness. And the Court finds that from those circumstances, the separation in '87 and the separation currently, and taking all these things incontext, I think that the grounds have been established that this marriage is beyond hope, and that the plaintiff be granted a decree of divorce on the grounds of gross neglect of duty and extreme cruelty towards the plaintiff.



Mrs. Dudon does not contend in this court that the trial court erred in determining that Mr. Dudon had established extreme cruelty and gross neglect of duty as grounds for divorce.



Despite the trial court's determination at the evidentiary hearing that Mr. Dudon had established extreme cruelty and gross neglect of duty, and that Mr. Dudon was entitled to a divorce on those grounds, the final judgment and decree of divorce, entered July 21, 1992, provided at paragraph 3 as follows:



The Court further finds that Plaintiff and Defendant are incompatible and that a Decree of Divorce should be awarded to Plaintiff.



On June 16, 1992, the trial court had entered its decision wherein it directed counsel for Mr. Dudon to prepare the final judgment and decree of divorce in accordance with the decision. In that decision, the trial court stated in part as follows:



Plaintiff filed the complaint for divorce on February 3, 1992 and averred grounds of incompatibility. Upon the testimony and the exhibits presented, the Court made its decision in open court as to the grounds issue.



The Court found that it has jurisdiction over the parties and the subject matter of this action. The Court found that the plaintiff established by proof satisfactory to the court the grounds set forth in the complaint, and he is therefore awarded a divorce on the grounds of incompatibility.



It would appear to us that the inconsistency between the ground stated in the final judgment and decree of divorce, and the grounds the trial court stated had been proved immediately after hearing testimony on May 19, 1992, was the result of nothing more than inadvertence by the trial court. The complaint alleged incompatibility as the ground for divorce, and it was only at the commencement of the evidentiary hearing that Mr. Dudon added by amendment the additional grounds of gross neglect of duty and extreme cruelty. It would appear to us that when the trial court dictated its comprehensive, seven page decision, approximately four weeks after the evidentiary hearing, it referred to the complaint for the grounds for divorce and failed to recall that the complaint had been amended at bar, and that Mr. Dudon had established the grounds which were added at bar to the complaint. Mr. Dudon's counsel, instructed to prepare a final judgment and decree of divorce in accordance with this decision, did not bring the inconsistency to the attention of the trial court, but rather drafted the final judgment and decree of divorce in accordance with the statement as to grounds in the trial court's decision.



Regardless of whether our speculation is accurate as to the reason for the inconsistency between the ground stated in the final judgment and decree of divorce, and the grounds stated by the trial court on May 19, 1992 as having been established by the evidence, we find no basis for reversal. In Moser v. Moser (1992), 5 Ohio App.3d 193, the Court of Appeals for Lorain County held in effect that when a complaint for divorce is filed alleging gross neglect of duty and extreme cruelty, and evidence relative to adultery is admitted without objection, the court does not err in granting a divorce on the grounds of adultery. In this case, the trial court's stated intention on May 19, 1992, immediately after hearing testimony as to grounds, was to grant the divorce on the basis of gross neglect of duty and extreme cruelty, grounds which were pleaded, albeit at the eleventh hour.



In that Mrs. Dudon makes no claim that the trial court erred in permitting the amendment at bar, or in determining that gross neglect of duty and extreme cruelty had been established, we fail to see how Mrs. Dudon has been prejudiced by the inadvertent statement in the final judgment and decree of divorce that the ground for the divorce was incompatibility.

Pursuant to App.R. 12(A)(1)(a), we will modify the final judgment and decree of divorce to provide that the grounds for divorce are gross neglect of duty and extreme cruelty, and not incompatibility. As modified, the final judgment and decree of divorce will be affirmed.



The assignment of error is overruled.



Robert J. Dudon v. Geraleen Dudon, 13610, 93-LW-2189 (Ohio App. Jun 23, 1993)