Baxter v. Baxter

• Citation: 56 O.O.2d 104,271 N.E.2d 873,27 Ohio St.2d 168
• Decision Date: 14 July 1971
• Docket Number: No. 70-44,70-44
• Parties: , 56 O.O.2d 104 BAXTER, a Minor, Appellant, v. BAXTER, Appellee.
• Court: United States State Supreme Court of Ohio

Page 168

27 Ohio St.2d 168

271 N.E.2d 873, 56 O.O.2d 104

BAXTER, a Minor, Appellant, v. BAXTER, Appellee.

No. 70-44.

Supreme Court of Ohio.

July 14, 1971.

Syllabus by the Court

1. Under R.C. 3109.04, the Common Pleas Court has no authority to award custody of a minor child to its grandmother unless it has found that 'neither parent is a suitable person to have custody,' and such lack of authority may not be obviated by describing the commitment as 'physical' rather than 'legal' custody.

2. Where the evidence conclusively shows that the mother of a minor child is not a suitable person to have custody of such child, and where an award of custody to the mother would constitute an abuse of discretion, it is erroneous, as a matter of law, for the Common Pleas Court to award 'physical' custody of the child to the grandmother and 'legal' custody to the mother. Under such circumstances the Court of Appeals is not required to remand the cause for a new trial but may order custody awarded to the father.

At issue in this case is the right to custody of Jeffrey Baxter, now five years of age, the son of Karen Baxter, plaintiff-appellant, and Gary Baxter, defendant-appellee. In a constested divorce action, in which each party sought a divorce and the custody of Jeffrey, the Common Pleas Court dismissed plaintiff's petition and granted a divorce to defendant on his cross-petition upon the grounds of gross neglect of duty and extreme cruelty. At the same time that court granted 'legal custody and control' of Jeffrey to the plaintiff, while giving 'physical control' of the child to plaintiff's mother, Ruth Dinan, 'until the further order of court.'

No appeal was taken from the decree of divorce. Defendant appealed the order of child custody to the Court of Appeals, which rdversed the order of the Common Pleas Court and ordered the legal custody of the child awarded to the defendant. Baxter v. Baxter (1969), 21 Ohio App.2d 188, 255 N.E.2d 637.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Bowers, White & DeMeo and Anthony J. Bowers, Lima, for appellant.

Recker, Cunningham & Cunningham, and Paul H. Cunningham, Ottawa, for appellee.

LEACH, Justice.

In reversing the order of child custody made by the trial court, the Court of Appeals concluded that 'the evidence shows conclusively that the mother is not a fit person to have the custody of this child, which probably was the reason the lower court awarded the physical custody to the plaintiff's mother.' It then found the action of the trial court in awarding custody to the plaintiff to be 'against the manifest weight of the evidence.' Apparently concluding that, under these circumstances, it could only remand for new trial on the custody issue, unless its power in such respect had been modified by the 'modern court' amendment to the Ohio Constitution, effective May 7, 1968, the Court of Appeals concluded that the provisions of Section 3(B)(1)(f), Article IV of the Ohio Constitution would authorize it to make an award of custody of the child to the father. 'Acting under this authority,' the Court of Appeals ordered legal custody awarded to the father.

So far as pertinent, Section 3 of Article IV of the Ohio Constitution, reads:

'(B) (1) The courts of appeals shall have original jurisdiction in the following:

'* * *

'(f) In any cause on review as may be necessary to its complete determination.'

The posture of this case, on the allowance of the motion to certify the record, would present for our consideration the question of whether the above-quoted language of the Ohio Constitution (prior to the adoption by this court of rules governing practice and procedure pertaining thereto, as authorized by Section 5(B), Article IV, Ohio Constitution) would permit Courts of Appeals to enter final judgments in all cases where it reversed on the basis of the weight of the evidence.

Historically, Ohio has drawn a distinction between the power of an appellate court to reverse on the weight of the evidence (wherein a new trial has been required) and the power to reverse on the basis that a single result in compelled as a 'matter of law' (wherein final judgment may be ordered contrary to the judgment of the lower court). E. g., the appellate court concludes that a directed verdict should have been sustained; or where no jury is involved, it concludes that judgment contrary to that given by the lower court is required as a matter of law. As to the somewhat analogous distinction between the power of a trial court (1) to weigh the evidence and (2) to conclude that 'reasonable minds' may not differ, see Rohde v. Farmer (1970), 23 Ohio St.2d 82, 262 N.E.2d 285.

Although, except in its application to the right of trial by jury (see Galloway v. United States (1943), 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458), there appears to be no constitutional restriction on the power of an appellate court to reverse on the weight of the evidence and to thereupon render final judgment, the decisions of this court have required a new trial in reversals on the weight of the evidence, even in cases where no jury or right to jury trial was involved. See Bridgeport Bank Co. v. Shadyside Coal Co. (1930), 121 Ohio St. 544, 170 N.E. 358; Campbell v. Campbell (1934), 128 Ohio St. 590, 193 N.E. 405; State ex rel. Squire v. Cleveland (1948), 150 Ohio St. 303, 82 N.E.2d 709; In re Estate of Murnan (1949), 151 Ohio St. 529, 87 N.E.2d 84; State v. Geghan (1957), 166 Ohio St. 188, 140 N.E.2d 790; Bown & Sons v. Honabarger (1960), 171 Ohio St. 247, 168 N.E.2d 880.

The effect of these holdings has been changed by this court, effective as of July 1, 1971, by the adoption of App.R. 12(C) of the Ohio Rules of Appellate Procedure, ^* pursuant to our power to adopt rules governing practice and procedure.

To the extent that a weight of the evidence reversal is involved, we conclude that the provisions of Section 3(B)(1)(f) of Article IV of the Ohio Constitution do not, per se, permit a Court of Appeals to thereupon enter final judgment instead of remanding for new trial.

However, on careful analysis, we conclude that a 'weight of the evidence' problem, in the sense that this term is employed in the Bridgeport, Campbell, Squire, Murnan, Geghan and Honabarger cases, supra, is not actually involved herein. Instead, in legal effect, the Court of Appeals found that the trial court, by awarding 'physical custody' to plaintiff's mother, exceeded its authority as a martter of law, and that by awarding 'elgal custody and control' to the plaintiff, instead of to the defendant, it abused its discretion. From a detailed consideration of the entire record, we conclude that the Court of Appeals was correct in both respects.

R.C. 3109.04 provides that if the court finds 'that neither parent is a suitable person to have custody it may commit the child to a relative * * *.' In the absence of compliance with the requirements of R.C. 3109.04 (and here there was no finding even by inference by the trial court that the father was not a suitable person to have custody), the court had no authority to commit the child to the grandmother. Grandon v. Grandon (1955), 164 Ohio St. 234, 129 N.E.2d 819. Such...