Mantz v. Mantz

Full title: MANTZ v. MANTZ et al.

Court: Court of Common Pleas of Ohio, Summit County.

Date published: May 25, 1946

69 N.E.2d 637 (Ohio Misc. 1946)

Opinion

No. 155953.

1946-05-25

MANTZ v. MANTZ et al.

Moyer & Benedict, of Barberton, for plaintiff. No appearance for defendant.

EMMONS

Action for divorce and alimony by Ruby Mantz against Henry Mantz and another.

Decree in accordance with opinion in favor of plaintiff.Moyer & Benedict, of Barberton, for plaintiff. No appearance for defendant.
EMMONS, Judge.

This cause came on to be heard upon the petition of the plaintiff and the evidence, and the Court finds that Henry Mantz, the defendant, is confined in Camp Bowie, Texas, under a general court martial for a period of five years and sentenced to be dishonorably discharged at the termination of his sentence and to forfeit all pay and allowances due or to become due.

The Court finds that a copy of the petition, together with summons and motion for temporary alimony and support, was sent to this defendant by registered mail; that an affidavit for publication had been made, and that service by publication had been completed.

The Court finds that plaintiff and defendant were married in 1938; that the plaintiff has been a resident of the State of Ohio and Summit County for more than a year immediately last past from the filing of her petition in divorce; that the plaintiff and defendant have four children as issue of said marriage: Carol, aged six; Karl, aged two; Alyce and Henry, twins, aged six months. That the defendant is guilty of gross neglect of duty as charged in the petition, and that the plaintiff is entitled to a divorce as prayed for.

An interesting question arises in this case as to whether the defendant, being a prisoner under general court martial, still has the protection under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A. Appendix, § 501 et seq.

Section 511 provides:

‘The term ‘persons in military service’ * * * as used in this Act, shall include the following persons and no others; All members of the Army of the United States, the United States Navy, the Marine Corps, the Coast Guard, and all officers of the Public Health Service detailed by proper authority for duty either with the Army or Navy. The term ‘military service’ as used in this Act, shall signify Federal service on active duty with any branch of service heretofore referred to or mentioned as well as training or education under the supervision of the United States preliminary to induction into the military service. The terms ‘active service’ or ‘active duty’ shall include the period during which a person in military service is absent from duty on account of sickness, wounds, leave, or other lawful cause.'

It is true that the defendant was drafted into the Army of the United States, but the question is whether he is still considered to be in active service or duty. He is not absent from duty because of sickness, wounds or leave, so his absence can only be excused under the head of other lawful causes. He was lawfully committed under general court martial, but the cause of this incarceration was an illegal one under army rules and regulations. The benefits of the Soldiers' and Sailors' Relief Act are extended to those who are in active service or duty and do not inure to benefit or protect those who through their voluntary aggressions and conduct remove themselves from the role of soldiers and sailors in active service or duty.

It would be asinine to imagine that the law was passed to grant a cloak of immunity from civil laws of the state by way of the Soldiers' and Sailors' Relief Act to one who stands in the position of a felon, having been convicted by general court martial.

It does not matter in this instance whether a dishonorable discharge is to come in the future or not; his pay as a soldier has stopped; those dependent upon him for support no longer get the government allotment; the government certainly does not regard him as a soldier on active duty or service, and this Court takes the same attitude. Wilson v. Wilson, 14 Ohio Supp. 92.

It is within the province of the Court to protect the wife and children and to see that a sufficient amount is awarded them to provide for the reasonable necessaries of life while the defendant is in military service, and service by publication is sufficient to decree the relief sought.

I do not mean to infer that commitment for any violation of the army's rules and regulations would divest the soldier of his rights under the Soldiers' and Sailors' Relief Act, but the gravity of the offense charged and the sentence of the court martial are factors which must be considered in determining this question.

Considering the facts in this case, the Court therefore finds that the defendant is not entitled to the immunities and benefits under the Soldiers' and Sailors' Relief Act, that he is not actively on duty or in service in the army, and therefore, since he cannot be served in the State of Ohio with summons, service by publication is properly made.

The Court finds further that the Great Northern Building & Loan Company of Barberton, Ohio, has $1843.79 belonging to this defendant, and that the plaintiff and her four children have no means of support.

The Court finds that the Great Northern Building & Loan Company, aforesaid, should be ordered to pay to and said plaintiff $150 per month from the defendant's money held by them, for the permanent alimony and support of plaintiff and her minor children; that the said Company pay to Otto Moyer, as attorney for said plaintiff, the sum of $100 for attorney fees; that the plaintiff and defendant are joint owners of certain property described in the petition, and that the defendant should be ordered to transfer all of his interest and equity in the same to this plaintiff as and for partial permanent alimony, and that if the conveyance is not made within sixty days that the decree of divorce be so prepared that all his right, title and interest be conveyed by court order; that the defendant should be further restrained from disposing of his war bonds and monies on deposit in postal savings, or from disposing of any of his property until the further order of the Court; that the plaintiff is found to be a fit and proper person for the custody of her minor children and that she should have permanent custody of them.

Journal entry to be prepared to conform to the Court's finding, saving exceptions to this defendant.