Summary
In Haynie v. Haynie (1959), 169 Ohio St. 467, 8 O.O. 2d 476, 159 N.E.2d 765, however, we consulted two other statutes — R.C. 3105.21 and 2151.23 — to decide if a domestic relations court has authority to certify a custody case after dismissing a divorce action and if a juvenile court has authority to accept the case so certified.
Summary of this case from State, ex Rel. Easterday, v. ZiebaOpinion
No. 35933
Decided July 8, 1959.
Divorce and alimony — Custody and support of minor child — Action dismissed for insufficient evidence — Court without authority to certify custody question to Juvenile Court.
Under Sections 3105.21 and 2151.23, Revised Code, where the Court of Common Pleas in a divorce action dismisses the action for insufficient evidence and without making a determination on the merits, it lacks the power and authority to certify the question of the custody of the minor child of the parties to the Juvenile Court, and the Juvenile Court is without power to accept such question.
CERTIFIED by the Court of Appeals for Summit County.
The present action arose in the Court of Common Pleas of Summit County, Division of Domestic Relations, when Sara Crawford Haynie began an action for divorce, alimony, custody of a minor child and support of such child against Harold Campbell Haynie. It appears that the judge of the Division of Domestic Relations is also judge of the Juvenile Court of such county.
There was a contest of the action, and on June 12, 1958, in the midst of the hearing, the court upon its own initiative certified the question of the custody of the minor child to the Juvenile Court, and by entry such question was forthwith accepted by the latter court.
At the close of plaintiff's evidence in the divorce action, the defendant moved for a dismissal of the petition for failure of evidence, which motion was sustained and the cause dismissed.
By entry of June 12, 1958, the Juvenile Court awarded temporary custody of such minor child to its mother, the plaintiff in the divorce action. Thereafter, the defendant in the divorce proceeding took an appeal to the Court of Appeals on questions of law from the order of June 12, 1958, in the divorce action. whereby the question of the custody of the minor child was transferred to the Juvenile Court.
Jurisdiction was accepted by the Court of Appeals, and, after hearing, that court reversed, as contrary to law, the June 12, 1958, order made by the Court of Common Pleas, Division of Domestic Relations, and remanded the cause to the trial court for further proceedings. The judges of the Court of Appeals finding that the judgment rendered is in conflict with the judgment of another Court of Appeals in the case of Muntzinger v. Muntzinger, 89 Ohio App. 281, 101 N.E.2d 227, certified the record to this court for review and final determination, as provided by Section 6, Article IV of the Constitution of Ohio.
Messrs. Stewart Simmons, for appellant.
Messrs. Butler, Addison, Smith Carmack and Messrs. Alpeter, Reed Diefenbach, for appellee.
In arriving at its decision, the Court of Appeals in the instant case relied principally on Sections 3105.21 and 2151.23 (D), Revised Code, and on the decision of the Court of Appeals for Fayette County in the case of Lewis v. Lewis, 103 Ohio App. 129, 144 N.E.2d 887.
Section 3105.21, Revised Code, recites:
"Upon satisfactory proof of any of the charges in the petition for divorce or for alimony, the Court of Common Pleas shall make such order for the disposition, care, and maintenance of the children of the marriage, as is just, and in accordance with Section 3109.04 of the Revised Code."
Section 2151.23 (D), reads:
"Such court [the Juvenile Court] has jurisdiction to hear and determine the case of any child certified to the court by any court of competent jurisdiction, and to make disposition of said child in accordance with Sections 2151.01 to 2151.54, inclusive, of the Revised Code."
It is apparent that by the express terms of Section 3105.21, Revised Code, the authority of the Court of Common Pleas to make an order respecting the custody of the minor children of the marriage is dependent "upon satisfactory proof of any of the charges in the petition for divorce," and that in the present case such proof was not forthcoming, resulting in a dismissal of the action at the close of plaintiff's evidence. Consequently, the Court of Common Pleas lacked the power to transfer the question of the custody of the minor child to the Juvenile Court.
By the language of Section 2151.23 (D), Revised Code, the Juvenile Court was without authority to accept or exercise jurisdiction in the circumstances since the matter was not referred to it by a "court of competent jurisdiction" or, in other words, by a court vested with authority to do so. Compare Schaffer v. Schaffer, 114 Ohio St. 309, 151 N.E. 186.
True, Section 3105.20, Revised code, does not deny the Court of Common Pleas in any matter concerning domestic relations the exercise of "its full equity powers and jurisdiction," but there must be a statutory basis upon which to exercise those powers before they may be put into play.
No error being discernible in the judgment of the Court of Appeals, it is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.