Bachtel v. Bachtel

• Decision Date: 08 February 1954
• Citation: 97 Ohio App. 521,127 N.E.2d 761
• Parties: , 56 O.O. 469 BACHTEL, Appellant, v. BACHTEL, Appellee.
• Court: Ohio Court of Appeals

Page 521

97 Ohio App. 521

127 N.E.2d 761, 56 O.O. 469

BACHTEL, Appellant, v. BACHTEL, Appellee.

Court of Appeals of Ohio, Lucas County.

Feb. 8, 1954.

Syllabus by the Court.

1. Upon an appeal designated as one on questions of law and fact from an order of the Juvenile Court relating to custody of minor children wherein no bond is filed, the appeal on questions of law and fact will be dismissed and the appeal will be retained for determination on questions of law under the provisions of the Appellate Procedure Act.

2. A Common Pleas Court may not take judicial notice of a former action in the same court and what may have occurred therein, even though the trial judge may have presided in the former case.

3. The admission of testimony given at a former proceeding between parties, except as provided in Section 11496, General Code, Section 2317.06, Revised Code, requires reversal of the judgment or final order unless it manifestly appears that its admission could not have prejudiced the party against whom it is offered.

4. In a hearing upon a motion to modify an order awarding custody of a minor child, evidence tending to show unfitness of the custodian, at or before the time such award was originally made, is not admissible.

Burns & Kiroff, Toledo, for appellant.

Allen J. Conkle, Toledo, for appellee.

FESS, Judge.

This cause is here on appeal on questions of law and fact from an order of the Juvenile Court finding plaintiff-appellant unfit to have custody of two minor children, aged eleven and nine years; awarding their custody temporarily to the Child and Family Agency for placement in a foster home; and further ordering plaintiff to pay $20 per week for the support and maintenance of such children.

Notice of appeal on questions of law and fact was filed, and defendant-appellee moves to dismiss the appeal on the ground that the plaintiff failed to file a bond as required by Section 8005-7, General Code, Section 3109.07, Revised Code. Section 8005-7, General Code, had its origin in the act of April 14, 1983, 90 Ohio Laws, 186. It was included in Bates Annotated Ohio Statutes as Section 3140-1 and in the Ohio General Code as Section 8035. The word, appeal, as used in the statute, meant an appeal as distinguished from a petition in error, and in conformity with the procedure generally upon appeal, provision for a bond was made. After the adoption of the 1912 amendment of Section 6, Article IV of the Constitution, the Court of Appeals had only such jurisdiction as was conferred by that amendment and had no jurisdiction to entertain an appeal from an order relating to the custody and support of children. West v. West, 100 Ohio St. 33, 124 N.E. 888. As in the case of Section 12002, General Code, Section 8035, General Code, purporting to confer jurisdiction, was ineffective. Cf. Marleau v. Marleau, 95 Ohio St. 162, 164. 115 N.E. 1009. ¹

But effective January 1, 1945, Section 6 of Article IV was again amended to read:

'The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procendendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders.'

In Youngstown Municipal Ry. Co. v. City of Youngstown 147 Ohio St. 221, 70 N.E.2d 649, the Supreme Court held that until there is legislative action which effects a change, the appellate jurisdiction of the Courts of Appeals remains remains as it was at the time the 1944 amendment was adopted. As in the case of Section 12002, General Code, Section 8035, although it remained in the General Code, is of no effect. Cf. Jelm v. Jelm, 155 Ohio St. 226, 237, 98 N.E.2d 401, 22 A.L.R.2d 300. But Section 8005-7, General Code, was enacted in 1951, after the adoption of the 1944 amendment. Without designating whether it is an appeal on questions of law or on questions of law and fact, it provides for an appeal to a 'higher' court upon the appellant's giving bond approved by the court from whose decree the appeal is taken. Since the Court of Appeals is one of the so-called 'higher courts,' jurisdiction is thereby conferred upon the Court of Appeals to entertain this appeal. Section 12223-1, General Code, Section 2505.01, Revised Code, provides that the word, appeal, (as used in the Appellate Procedure Act) shall be construed to mean all proceedings whereby one court reviews or retries a cause determined by another court, an administrative officer, tribunal or commission.

In enacting Section 8005-7, General Code, the Legislature made no distinction between an appeal on questions of law and an appeal on questions of law and fact. Notwithstanding the provision for a cost bond on the appeal, it is difficult to conceive that the Legislature intended to afford the contending parties a trial de novo in the Court of Appeals in custody cases which involve no chancery jurisdiction. Having failed to denominate the appeal as one on questions of law and fact, we conclude that the appeal referred to in the section is one on questions of law only.

Section 12223-3, General Code, contemplates that every final order, judgment or decree of a court may be reviewed as provided in the Appellate Procedure Act, unless otherwise provided by law. Section 8005-7, General Code, provides no manner of review, nor is any time fixed for filing notice of appeal or the giving of bond. We therefore apply the provisions of the Appellate Procedure Act in the determination of the motion to dismiss the appeal. Section 12223-6, General Code, provides that no appeal shall be effective as an appeal on questions of law and fact unless and until a supersedeas bond is filed at the time the notice of appeal is required to be filed. But if a case can not be heard as an appeal on questions of law and fact because no appeal bond has been filed, the appeal is not dismissed but stands for hearing as an appeal on questions of law. Bauer v. Grinstead, 142 Ohio St. 56, 50 N.E.2d 334. The appeal designated as one on questions of law and fact is therefore dismissed, the motion to dismiss the appeal overruled, and the appeal retained for review on questions of law under the provisions of the Appellate Procedure Act upon the transcript of the docket and journal entries and bill of exceptions previously filed herein. The notice of appeal is amended to designate the orders of the court entered June 12, 1953, and June 22, 1953, as the orders from which the appeal is taken, instead of the order of July 28, 1953, overruling the motion of the plaintiff for a new hearing.

The plaintiff and the defendant were married in 1941 and are the parents of the two children involved in this proceeding. Upon their divorce in March 1946, custody of the children, then four and three years of age, was awarded plaintiff and defendant was ordered to pay $40 per month for the support of the children. The cause was certified to the Juvenile Court for further proceedings. Defendant testified he had paid $798 pursuant to such order, but in February 1951, plaintiff was awarded a judgment in the sum of $1,372 of arrearage in payments. Defendant was purged from contempt, presumably because of inability to pay on account of mental and physical illness.

On June 20, 1952, defendant filed a motion for modification of the custody order of March 26, 1946, which, after a hearing and report of a referee, was dismissed on October 7, 1952. From the report of the referee, it appears that defendant refused to participate in the hearing because of the ruling of the referee excluding evidence of conduct prior to the divorce.

On April 2, 1953, defendant again filed a motion to modify the support and custody order, in which motion he recited that on October 7, 1952, the court had entered the order denying his motion for custody and alleging that since such date there had occurred a substantial change in circumstances and that he had further evidence of neglect of the children by the mother.

This motion came on for hearing on June 12, 1953. Defendant ineptly attempted to support his motion without benefit of counsel. The court consistently sustained objections relating to any misconduct on the part of the plaintiff prior to October 7, 1952. Defendant failed to produce any evidence to support a finding that plaintiff was unfit to have custody of the children and at the conclusion of his examination plaintiff's counsel moved to dismiss the motion. Thereupon the following transpired:

'The court: He hasn't rested yet. You see, Mr. Burkhart, the custody and welfare of children is involved here, and the court, in a recent hearing with which you are perfectly familiar through your law partner, Mr. Burns, has gone over the matter of the fitness of Mrs. Pettigrew at this time, to have custody of John, and it stands to reason that if the court has found her--which it has--unfit to have the custody of John, the same thing goes with reference to Mary and Harry. So, in order that you may have the benefit of the information which the court has about Mrs. Pettigrew, the court is introducing and receiving into this hearing the record in the Pettigrew case, for the purpose of appeal.

'Mr. Burkhart: I would like to enter an objection to that.

'The court: With that you rest your case, I take it, Mr. Bachtel?

'Mr. Bachtel: Yes.

'The court: You may proceed, Mr. Burkhart.'

Upon this appeal, error is assigned to the introduction and consideration by the court of the record in the Pettigrew case, 128 N.E.2d 841, over objection of the plaintiff.

In determining whether improperly admitted and potentially prejudicial evidence prejudices an appellant or whether substantial justice has been done, a reviewing court should not weigh the other evidence or determine the credibility and effect of conflicting evidence, unless the weight, credibility and effect of that evidence is substantially in favor of the appellee. Hallworth v. Republic Steel Corp., 153 Ohio St....