Opinion
No. 40907
Decided March 20, 1968.
Courts — Inherent powers — May deny relief to litigant refusing to abide by court's order — Divorce and alimony — Order for temporary custody of minor — Application for rehearing — Section 3105.14, Revised Code — Statute contemplates reconsideration of temporary order — Application may be continued, when — Applicant refusing to appear — Contempt of court — Procedendo — Relief may be denied, when — Litigant, asking relief, refusing to comply with order of court.
1. A court may deny relief to a litigant who refuses to abide by an order of such court in a matter pending before it, by reason of the inherent power of courts to do all things necessary to the administration of justice and to protect its own powers and processes and the rights of those who invoke its processes.
2. A trial court in a divorce action may continue a motion for rehearing of an order providing for the temporary custody of the minor children of the parties when the movant, a party to the action, refuses to appear before the court in support of her motion for rehearing but defies the court and such previous order by leaving this state, taking with her a child, the subject of such order. (Section 3105.14, Revised Code, construed and applied.)
3. The provisions of Section 3105.14, Revised Code, pertaining to applications for rehearing, contemplate a reconsideration of the previous temporary order by the trial court in view of changed circumstances and the conduct of the party making such application following the decision upon the original order.
4. Procedendo does not lie to compel a trial court in a divorce action to pass upon an application for rehearing and enter a final order with respect to the temporary custody of minor children, where such application was made by a parent who refused to appear and testify at the hearing thereon. (Section 3105.14, Revised Code, construed and applied.)
APPEAL from the Court of Appeals for Lorain County.
This was an action in procedendo originating in the Court of Appeals where judgment denying the writ was entered. Appellant perfected an appeal to this court as a matter of right.
Appellant is defendant and cross-petitioner in a divorce action pending in the Court of Common Pleas of Lorain County. On July 18, 1966, Judge Henry P. Webber of the Court of Common Pleas, appellee here, conducted a hearing for temporary custody of the two minor children of the parties to the divorce action. Appellant appeared and testified at that hearing, as did her husband, plaintiff in the divorce action. On November 29, 1966, appellee made the following entry upon the journal:
"On the recommendation of the Lorain County Child Welfare Board the temporary custody of the minor children of the parties hereto [the divorce action] is granted to Albert Pfeiffer paternal grandfather of said children until further order of the court. No order of support at this time."
Appellant subsequently moved, by her attorneys, for a rehearing of the temporary custody order. This motion was heard December 16, 1966. Counsel for appellant represented that their purpose in the motion was to obtain a final order under Section 3105.14 of the Revised Code as a preliminary step to appeal of the temporary custody order. Appellant did not personally appear at this hearing. Her counsel stated that she was not available, and when asked by the court why she was not, replied, "I don't know what her motives are. I mean, all we know is that the day she found out about the order, one child and herself just disappeared." Thereupon, Judge Webber continued the motion until such time as appellant was before the court.
The instant action was filed January 12, 1967, by counsel for appellant seeking a writ of procedendo commanding respondents, the Court of Common Pleas of Lorain County and Judge Webber, to "* * * hear plaintiff-relator's motion for a rehearing on the temporary order * * *." No answer was filed, but appellees appeared by counsel before the Court of Appeals for the hearing on the petition. No evidence was presented, the cause being submitted to the court upon the statements of counsel, which included, in addition to the facts set out above, the statement that appellant and one child had removed to the state of Texas and were residing with appellant's parents there.
Mr. Leonard J. Haase, for appellant.
Mr. Paul J. Mikus, prosecuting attorney, and Mr. Richard T. Laux, for appellees.
The question presented here is whether a court may continue a motion of a parent for rehearing of a temporary child custody order when the moving party, the same parent, is not personally before the court but has removed herself and one child from the jurisdiction of the court contrary to such order. The appellant is the defendant in a divorce action pending in the appellee court. She has actively invoked its aid by her cross-petition. Pursuant to the authority granted by Section 3105.14 of the Revised Code to make allowance for support and custody orders pendente lite, the appellee judge made an order granting temporary custody of the two minor children of the parties to the paternal grandfather. Upon learning of this order, appellee took the younger child with her to reside with her parents in Texas. From her domicile in Texas, she has invoked the aid of appellee court by causing a motion for rehearing to be filed.
Section 3105.14 of the Revised Code provides that either parent, or both, may for good cause be deprived of custody temporarily, pending a final determination of whose custody is in the best interest of the child under Chapter 3109, Revised Code. It is appellant's own conduct that has placed her in the anomolous position where, with relative impunity, she is in contempt of the order of the court while litigating the propriety of that order. Under these circumstances, it is appellant, rather than the court, who decides for all practical purposes what is best for the child in her custody as there is no reason to believe that she would not continue in contempt of the present custody order in the event of affirmance on review.
Appellant argues that the trial court was under a mandatory duty to enter a final order upon the application for rehearing. Section 3105.14 of the Revised Code provides in part:
"* * * On application for a rehearing on any such [alimony or custody pendente lite] order by a party whose rights are irreparably and substantially affected thereby, if requested by such party, the court shall make a final order with respect to the matters provided for in such temporary order." (Emphasis added.)
We do not think that the statute imposes a mandatory duty on the trial judge to make his previous order final without any reconsideration or the exercise of any discretion. The General Assembly provided for an application for rehearing rather than a mere application. It provided for a final order with respect to the matters provided for in such temporary order, rather than merely finalizing such temporary order. We think that these provisions contemplate that the court shall reconsider its temporary order and enter such final order as the circumstances may require. This is particularly true where the future welfare of children is involved.
The Court of Appeals, in denying the writ in the instant case, rested its judgment on the ground that the interest of the children was paramount.
We think that it is within the inherent powers of a court to deny relief to a litigant who refuses to comply with the orders of the court, and in effect defies the orders of a court. This power derives from the inherent power of courts to do all things necessary to the administration of justice and to protect its own powers and processes and the rights of those who invoke its processes. See State, ex rel. Raydel, v. Raible, 92 Ohio App. 537. It inheres in the constitutional grant of judicial power to the courts. In Wind v. State, 102 Ohio St. 62, the imposition without trial by jury of a jail sentence for contempt in maintaining a public nuisance against a previous order of the court was tested in this court.
The per curiam opinion stated, at page 64:
"The power of a court to enforce its own proper orders is fundamental and inherent, as well as constitutional; necessarily so, to give it standing and afford respect and obedience to its judgment. This is upon the broad ground of public policy, and without which power the judicial edifice would fall. * * *"
Earlier, in Hale v. State, 55 Ohio St. 210, this court examined legislative limitations on the inherent powers of courts. Paragraph one of the syllabus in Hale reads, in pertinent part:
"The General Assembly is without authority to abridge the power of a court created by the Constitution to punish contempts summarily, such power being inherent and necessary to the exercise of judicial functions * * *."
Infrequently, but consistently, this court has relied upon the inherent powers of courts to do those things necessary to the preservation of judicial powers and processes. See Jelm v. Jelm, 155 Ohio St. 226; State, ex rel. McKean, v. Graves, 91 Ohio St. 23; State v. Townley, 67 Ohio St. 21.
For these reasons, appellant is not entitled to the allowance of the extraordinary writ of procedendo, and the judgment of the Court of Appeals denying the writ is, therefore, affirmed.
Judgment affirmed.
ZIMMERMAN, MATTHIAS, O'NEILL and BROWN, JJ., concur.
in paragraphs two and four of the syllabus and in the judgment.