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Northern Kentucky State NORTHERN KENTUCKY STATE Volume 2 Winter, 1974-75 Number 2 CONTENTS ARTICLES FROM COMMANDMENTS TO CONSENT: OHIO IN THE DIVORCE REFORM ERA Henry E. Sheldon, II ............................ 119 PHOTOGRAPHS IN THE COuRTROoM-"GETING IT STRAIGHT BETWEEN YOU AND YOUR PROFESSIONAL PHOTOGRAPHER" M arvin S. Flower ............................... 184 LANDLORD-TENANT REFORM IN OHIO Robert E. Haley ................................ 212 SHAREHOLDER DERIVATIVE ACTIONS: A GENERAL SURVEY WITH OBSERVATIONS John A. Lloyd, Jr. and Thomas P. Mehnert ....... 249 SIXTH CIRCUIT REVIEW ............................. 269 BOOK REVIEW S ...................................... 310 The views expressed in this law review are those of the authors of the articles, and do not necessarily reflect the opinions of the Trustees, Faculty, Administration, or Alumni of Salmon P. Chase College of Law or Northern Kentucky State College. CONTRIBUTING AUTHORS are expected to reveal personal, economic, or profes- sional interests or connections that may have influenced the views taken or advocated in their articles. Each author impliedly represents that he has made such disclosure, by agreeing to publication of his paper in this law review. NORTHERN KENTUCKY STATE Volume 2 Winter, 1974-75 Number 2 FROM COMMANDMENTS TO CONSENT: OHIO IN THE DIVORCE REFORM ERAt Henry E. Sheldon, 11ft INTRODUCTION-THE WNDs OF CHANGE " Like the great Nor'Westers of winter which periodically, after a slow and lengthy buildup of natural forces on the tundric plains of Canada, roar through the Midwest, uplifting and shifting human destinies in their paths of cold and icy power, the winds of change in the law have produced, after characteristic sputtering and halts, new and dramatic results in the area of divorce and family law reform which should affect the lives of millions of Americans in the countless generations that lie ahead. State legislatures across our country, suddenly sensitive to these winds of change, have bowed creatively, after decades of apathy, inaction and hypocrisy, to some- times homogeneous, but often countervailing and contradictory, pressures by erasing, via repeal, the black letter antiquities of the past two centuries and by the promulgation of new and vibrant family law concepts which honestly and openly seek to conform to the demands and needs of an urban society, burdened with prob- lems of overpopulation, inflation, juvenile delinquency, reaction to the end of an unwanted war, and the mounting stress and strain of everyday living. As one legal scholar once aptly described the situa- tion, divorce law reform occurs only when the legislature marches in tune and beat with "the modem drummer."' * My thanks for their assistance in the preparation of this article go to Carol C. Hake, a senior at Salmon P. Chase College of Law, and Carol M. Bratton and her staff of the Hamilton County Law Library. ** B. A. Wabash College (1958); M.A. University of Cincinnati (1960); J.D., University of Cincinnati (1963). Member of Ohio and Federal Bars. Former United States Commissioner for the Southern District of Ohio (1965-1971). Member of Faculty of University of Cincinnati College of Law; Partner in firm of Sheldon & Pitzer. 1. Couch, Toward A More Realistic Divorce Law, 43 TIL. L. Rav. 243 at 255 (1969). 120 NORTHERN KENTUCKY STATE LAW FORUM [Vol. 2 I. SEPARATION AS GROUNDS FOR DIVORCE The first clearly discernible assault by reformers upon the citadel of fault-oriented divorce began in 1850 in the Commonwealth of Kentucky,2 in Wisconsin at the end of the Civil War, 3 in Rhode Island in the early 1890's,4 and in Louisiana at the outset of World War ID These laws contained an additional and co-existing ground for divorce, and permitted severance of the marital relationship upon proof that the parties had lived separate and apart for a stated period of time. This reform effort continues even today,6 with roughly one-half of our states having such legislation on the books 7 at the outset of this decade. Broadly speaking, these separate and apart statutes fall into four very distinct categories: (1) those which require proof at trial that the parties mutually and voluntarily separated for purposes of obtaining a divorce and that their plan continued, unabated, for the specified period of time; (2) those permitting spouses, in the absence of reconciliation, to live separate and apart pursuant to an earlier decree of separate maintenance (alimony only, limited divorce, etc.) and further permitting those spouses to seek an absolute divorce after the expiration of the stated time period, irrespective of fault, includ- ing an adverse adjudication of misconduct in the prior adjudica- tion; (3) those which allow only the injured and non-transgressing spouse to seek an absolute divorce after having lived separate and apart from the wrong-doer for the specified time period; and (4) those sanctioning divorce, regardless of fault, upon proof of separation for the required time period.' 2. Kentucky Laws of 1850, Chapter 498, page 55. 3. Wisconsin General Laws of 1866, Chapter 37, page 40. 4. Public Laws of Rhode Island, Chapter 1187, page 313. 5. Louisiana Act 169 of 1916. 6. VmMtA CODE ANNO. §20-91(9)(1974); N.Y. DoM. REL. LAw, §170(5) (MeKinney Supp. 1974); VT. STAT. ANNo. T.15§551(7) (1974). 7. For a general discussion of the intricacies of such statutes, see: McCurdy, Divorce-A Suggested Approach With ParticularReference To Dissolution For Living Separate and Apart, 9 VAND. L. REv. 685 (1956); Note, The Economics of Divorce: Alimony and Property Awards, 43 U. CiN. L. REv. 133 (1974); Comment, Divorce: Statutory Abolition of Marital Fault, 35 CAL. L. REv. 99 (1947); Note, Divorce: Living Apart Statutes As A Replacement ForFault, 1959 WASH. U.L.Q. 189 (1959). 8. Wadlington, Divorce Without Fault Without Perjury, 52 VA.L. Rav. 32 at 53 (1966); Couch, supra, note 1, at 258-59; Comment, Divorce on Ground of Separation, 18 WASH. & LEE L. Rav. 157 (1961). 1974-75] OHIO DIVORCE REFORM The statutes described in the first category have been bitterly assailed as "patently unrealistic"' because: (1) proof of the mutual and voluntary nature of the separation rarely can be corroborated;"0 (2) when the voluntary agreement can not be established, the non- consenting spouse can either prevent an otherwise justified termina- tion of the relationship or extort a satisfactory settlement before capitulation;" and (3) when neither party can prove this, they are forced to resort to fraud and collusion, the very tactic sought to be avoided by such legislation. 12 Perhaps the most merited criticism is that such statutes permit judicial "legislation" on the facts of the case, 13 causing conflicting rulings on the meanings of "voluntary" and "mutual," thereby creating unnecessary instability in the law. The statutes mentioned in the second category have been justly condemned for requiring and forcing, at least in the abstract, if not in reality, battling spouses into two-fold litigation with all the at- tendant adverse legal, social and economic consequences flowing therefrom. 4 Scathing critiques have been aimed against the third category, the so-called "injured" spouse statutes, for the reason that miscon- duct and fault are re-injected into the law by allowing only the aggrieved party to prevail. 5 Under this type statute, a spouse who 9. Note, Separation ForA Periodof Years As Grounds For Divorce, 97 U.PA. L. RE. 705, 710-11 (1949). 10. Note, Five Years Voluntary Separation As New Ground For Absolute Divorce, 2 Mn. L. Rzv. 357, 359 (1938). Compare, under such a statute, Garner v. Garner, 257 Md. 723, 264 A.2d 858 (1970); with Smith v. Smith, 257 Md. 263, 262 A.2d 762 (1970). 11. Materials cited note 10 supra. 12. 2 MD. L. Rav. 357, supra note 10, at 362; see 1959 WASH. U.L.Q. 189 supra note 7, at 196; Misner v. Misner, 211 Md. 398, 127 A.2d 547 (1956). 13. Note, Divorce-Constructionof Voluntary SeparationStatute, 29 GEO. L. J. 787 (1941); Note, FurtherOn Five Years Voluntary SeparationAs Ground ForAbsolute Divorce, 7 Mn. L. Rav. 146, 158 (1943). The same criticism applies to courts which, in an effort to destroy the no-fault aspects of statutes in the fourth and final category, read into the statute the requirement of "mutual" and "voluntary". See Rutman, DepartureFrom Fault, 1 J. F m. L. 181, 198 (1961); Note, Separation by Mutual Consent, 40 N. CAR. L. Rav. 808, 811 (1962); Note, "Voluntary" Two-Year Separation,6 LA. L. Rzv. 472,473-75 (1945); Note, Living Apart as Ground-Effect of Fault on Plaintiff's Part, 17 TEx. L. Rv. 93, 94 (1939); Note, Construction of Statute Making Separation for a Period of Years a Ground for Absolute Divorce, 87 U. PA. L. REV. 124, 125 (1938). 14. Note, The No Fault Concept: Is This The FinalStage In The Evolution Of Divorce?, 47 NoTRE DAmw LAw. 959, 967 (1972). For a quick and succinct glimpse at the problem, see Schine v. Schine, 31 N.Y.2d 113, 286 N.E. 2d 449, 335 N.Y.S.2d 58 (1973) and Nitschke v. Nitschke, 66 Misc. 2d 435, 321 N.Y.S. 2d 246 (Sup. Ct. 1971). 15. Wadlington, supra note 8, at 61-63; Note, Ten Year Separation As An Absolute Ground, 28 TEx. L. Rav. 266, 267 (1949); Note, Divorce On The Ground Of Living Apart, 2 Wyo. L. J. 76 (1947). 122 NORTHERN KENTUCKY STATE LAW FORUM [Vol. 2 wants out of a broken marriage can not succeed in court-a totally impossible situation. The fourth category, sanctioning divorce regardless of proof of fault, upon evidence establishing that the parties have lived sepa- rate and apart for the statutory term, is the only one of the group mentioned above with potential to fulfill and carry out the underly- ing policy and philosophy of the law-that the best interests of the parties themselves and society as a whole are served by judicial recognition and severance of the unwanted bonds of a long-dead marriage.
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