Sunday, December 8, 2013

Bennington v. Bennington case brief

Bennington v. Bennington case brief summary
381 N.E.2d 1355 (1978)


CASE SYNOPSIS
Appellant wife sought review of an order from the Court of Appeals for Franklin County (Ohio), which granted appellee husband a divorce on the ground that the parties lived separate and apart for at least two years without cohabitation, and ordered the sale of the parties' house and automobile.

CASE FACTS
The wife suffered a stroke and was disabled. The husband moved out of the house and into a van located adjacent to the house. His primary reason for moving into the van was that the wife kept the house at about 85-90 degrees. The wife later filed an action for alimony, claiming gross neglect of duty and abandonment. The husband filed a counterclaim for divorce, alleging gross neglect of duty and extreme cruelty. He asserted as grounds for divorce the fact that the parties lived separate and apart for at least two years without cohabitation. The trial court granted the husband a divorce.

DISCUSSION
  • On appeal, the court found that the trial court erroneously included the time that the husband lived in the van adjacent to the house as part of the two-year period, as the parties were not living "separate and apart" during that time. 
  • During that time, there was no cessation of marital duties and relations between the wife and husband. 
  • While there was a lack of cohabitation, there was no living "separate and apart" as contemplated by Ohio Rev. Code Ann. § 3105.01(K). 
  • The court further found that the trial court did not err in ordering the parties' real estate and automobile sold.
CONCLUSION
The court reversed the order granting the husband a divorce. The court remanded the case for further proceedings.

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