Bower v. Bower

• Decision Date: 01 April 1914
• Docket Number: 13704
• Parties: Bower v. Bower
• Court: Ohio Supreme Court

106 N.E. 969

90 Ohio St. 172

Bower v. Bower

13704

Supreme Court of Ohio

April 1, 1914

Divorce and alimony - Custody of child - Appeal will lie, when - Section 803, General Code.An appeal will lie from a judgment or order of a court for the care, custody and maintenance of minor children regardless of whether such order is made in an action for divorce, divorce and alimony or alimony only, or in proceedings under the pro-visions of Section 8032, General Code. (Second paragraph of the syllabus in the case of Rogers v. Rogers, 51 Ohio St. 1, overruled.)

Mr James C. Nicholson and Mr. George S. Marshall, for plaintiff in error.

Messrs Vorys, Sater, Seymour & Pease, for defendant in error. BY THE COURT.

The authority of a court to make an order for the disposition care, custody, control and maintenance of' minor children when husband and wife are divorced or living separate bind apart from each other, is conferred by Sections 80.32, 8033 and 8034, General Code. Section 8035 provides that an appeal may be taken from such order. Section 11987, General Code also provides that such order may be made in an action for divorce and alimony. Section 11994, General Code, provides that pending an action for divorce, divorce and alimony, or for alimony only, a court may grant alimony to either of the parties for his or her sustenance during the suit and an allowance for minor children dependent upon either party for support, and when an appeal is taken by either party the circuit court, or a judge thereof in vacation, may grant like alimony and support during the pendency of the appeal. The appeal referred to in Section 11994, General Code, necessarily means an appeal from the final order and judgment of the court, for no appeal Will lie from an order alloWing alimony pendente lite. Taylor v Taylor, 25 Ohio St. 71; King v. King, 38 Ohio St. 370.

The provision of Section 12002, General Code, that when judgment is rendered for both divorce and alimony the appeal Will lie only to so much of the judgment as relates to the alimony, does not affect the right to appeal from the order providing for the care, custody and maintenance of minor children, conferred by Section 8035, General code, then such order is included as a part of the judgment in that action. The only effect that Section 12002, General Code, has upon Section 8035, General Code, is to authorize an appeal by the wife, without giving bond.

The question presented in the case of Rogers v. Rogers, 51 Ohio St. ], with reference to appeal in that case, is not identical With the question here. In that case a judgment Was entered at the January term, 1889, granting the plaintiff a divorce and the custody of one minor child. The custody of five of the minor children was given to the father, and the decree further provided that the...