Opinion
No. 20523
Decided June 10, 1967.
Divorce and alimony — Venue — Jurisdiction to determine custody of children — Service by publication — Domicile of parents and children.
Where the plaintiff father has the children of the parties with him at the time of the filing for divorce and custody, has had them for several months under the terms of an agreement between the parties, has them at all times during the process of service by publication until the defendant mother surreptitiously persuades him to permit overnight visitation apart from his home, and immediately then she absconds with the children to another state, the process of service by publication is thereafter completed and subsequently the case comes on for trial, that the children's domicle was and remains the domicile of the parent, here the father, who has had them under these circumstances and that this court has jurisdiction to determine the right of custody; but that such jurisdiction is not established by the agreement of the parties.
This court decided in Noble v. Noble, 80 Ohio Law Abs. 581, that the court has jurisdiction to determine custody of children, if the children and the parent with whom they lived were located in the state of Ohio and within the jurisdiction of the court and requirements of Section 3105.03, Revised Code, were met, although one of the parents was served by publication and was absent from the state.
However the instant case raises the question of circumstances in which the parents, on November 4, 1966, executed a written agreement whereby the husband secured the children's custody, subsequently the divorce action was filed March 29, 1967, and service by publication instituted on March 31, 1967; thereafter, during the pendency of the six-week publication the defendant wife persuaded the plaintiff to permit her to have the children at a local hotel overnight, she having arrived from another state: one can guess the results, because she nor the children have been located in the state of Ohio since, and she made no appearance in this case. Service by publication being thereafter completed, the case came on for hearing and the plaintiff urges this court to award him the custody of children, although he believes them to be out of the state of Ohio.
His counsel has cited three authorities, none of which decide this question. Black v. Black, 110 Ohio St. 392, discloses that the defendant appeared by pleadings and by appearance in open court; Kirkpatrick v. Kirkpatrick, 74 Ohio Law Abs. 14, discloses that the children had been with the plaintiff father "At the time of the decree, and during pendency of the suit and prior to its commencement," and that a divorce had been obtained. The decision revolved about the notice for modification of the decree when the father, who had been awarded custody, died; therefore, the court's jurisdiction had already attached. The citation at 9 A. L. R. 2d 446, Section 7, discloses that
"* * * this section considers those cases which involve the effect of the removal of a child from the territorial jurisdiction of the court after jurisdiction has once attached * * *."
It is readily seen, therefore, that the authorities cited are not decisive of the question before the court.
As the court views the problem, decision rests upon the in personam jurisdiction of the defendant or the lack thereof. Section 303 at page 428 of 27B Corpus Juris Secundum sets out the various views on this question:
"Accordingly, one view is that a court has jurisdiction in custody matters only if the child is a domiciliary of the state. On the other hand, a number of courts have adopted as a sole test, or have added as an alternative basis of custody jurisdiction, the physical presence of the child within the state. Under a third rule, the basis for custody jurisdiction is personal jurisdiction over both parents. In some states the rule is that circumstances which meet any of the above three jurisdictional tests are sufficient to give the divorce court jurisdiction to determine custody."
In Anderson v. May, 91 Ohio App. 557, the court held:
"2. The domicile of a minor child is ordinarily that of its father, and such child is without capacity to change its domicile.
"3. Temporary permissive absence of a minor child from the domicile of its father in company with its mother who, while temporarily absent, decides to and does change her domicile does not effect a change of such child's domicile.
"4. Where parties to a marriage, while domiciled in Wisconsin, agreed that the mother and minor children should come to Ohio on a temporary and conditional basis while the mother considered existing domestic difficulties, and the mother, while in Ohio, decided to and did change her domicile from Wisconsin to Ohio, such temporary absence and change of the mother's domicile did not effect a change of the minor children's domicile, and in an action by the father in Wisconsin for divorce and custody of such children the Wisconsin court had jurisdiction to award custody to the father."
(See also In re Fore, 79 Ohio Law Abs. 15.)
This case was appealed to the United States Supreme Court, and holdings 2 and 3 were not disturbed. May v. Anderson, 345 U.S. 528, 97 L. Ed. 1221, 73 S. Ct. 840.
In Swope v. Swope, 163 Ohio St. 59 at 61, the court quoted from page 57 of the Restatement of the Law of Conflict of Laws:
"`The minor child's domicil, in the case of divorce or judicial separation of its parents, is that of the parent to whose custody it has been legally given; if there has been no legal fixing of custody, its domicil is that of the parent with whom it lives * * *'." (Emphasis added.)
Although Section 3105.04, Revised Code, places limitations upon Section 3103.02, Revised Code, the latter is of interest and provides as follows:
"The husband is the head of the family. He may choose any reasonable place or mode of living and the wife must conform thereto."
A Massachusetts case, decided by the Supreme Judicial Court of that state, bears upon similar circumstances before the court, although a distinction lies between it and the instant case in that both parties were personally before the court and a temporary custody order had been given the wife. The husband, by force, took the child of the parties and left the state. The court held that the child's domicile was in Massachusetts, and that no facts appeared to show a change of domicile of the family and particularly the father. Conley v. Conley, 324 Mass. 530, 87 N.E.2d 153.
Therefore, this court holds that the children of the parties had, and at all times herein involved, were domiciled in the state of Ohio and county of Highland.
The question as to the time of jurisdiction attaching on service by publication in a divorce action has been answered by the Ohio Supreme Court in Gehelo v. Gehelo, 160 Ohio St. 243. This court states at pages 245 and 246:
"While the date of the commencement of an action obviously is important for certain purposes, this court is of the view that under the strict compliance required in procedure in divorce actions in this state, this date is not controlling in determining when jurisdiction is obtained over the defendant. * * *"
"* * * But it is urged that the publication was in fact completed subsequently and that hence jurisdiction should be considered as having vested at the date of the first publication. This view would require a holding that incomplete service of summons by publication vests jurisdiction over the defendant although incomplete personal service does not."
Therefore, this court is of the opinion that jurisdiction of the defendant had not been obtained at the time that she persuaded plaintiff to permit overnight visitation with the children.
The remaining question is that of the effect of the agreement executed by the parties prior to the filing of the divorce action. The ninth and tenth headnotes of Estin v. Estin, 68 S. Ct. 1213 ( 334 U.S. 541, 92 L. Ed. 1561) read:
"9. New York separation judgment granting wife permanent monthly alimony was a "property interest" of wife, and such property interest was an intangible, jurisdiction over which could not be exerted through control over a physical thing.
"10. Jurisdiction over an intangible can only arise from control or power over the persons whose relationships are the source of the rights and obligations."
(See also Zouck v. Zouck, 104 A.2d 573, at 576.)
Therefore, this court does not believe it to have jurisdiction to award custody on said contract.
The court holds in circumstances in which the plaintiff father has the children of the parties with him at the time of the filing for divorce and custody, has had them for several months under the terms of an agreement between the parties, has them at all times during the process of service by publication until the defendant mother surreptitiously persuaded him to permit overnight visitation apart from his home and immediately then she absconded with the children to another state, the process of service by publication is completed and subsequently the case comes on for trial, that the children's domicile was and remains the domicile of the parent, here the father, who has had them under these circumstances and that this court has jurisdiction to determine the right of custody; but that such jurisdiction is not established by the agreement of the parties.
The court has awarded the divorce to plaintiff, but reserved the question of custody and now awards custody of children to plaintiff with reasonable visitation privileges to defendant at the home of plaintiff.
General references are made to Nelson Divorce and Annulment 2 Ed. 15.33, and 25 American Jurisprudence 2d, Sections 64 and 66 under "Domicile."
Counsel for plaintiff will draw proper entry in accordance herewith.