Haynie v. Haynie

• Decision Date: 17 December 1958
• Citation: 161 N.E.2d 549,108 Ohio App. 342
• Parties: , 9 O.O.2d 301 HAYNIE, Appellee, v. HAYNIE, Appellant.
• Court: Ohio Court of Appeals

Page 342

108 Ohio App. 342

161 N.E.2d 549, 9 O.O.2d 301

HAYNIE, Appellee, v. HAYNIE, Appellant.

Court of Appeals of Ohio, Summit County.

Dec. 17, 1958.

Syllabus by the Court.

Section 3105.20, Revised Code, does not deny the Court of Common Pleas in any matter concerning domestic relations the exercise of 'its full equity powers and jurisdiction,' but there must be a statutory basis upon which to exercise those powers before they may be put into execution.

Richard M. Stewart, Akron, for appellee.

Butler, Addison, Smith & Carmack, Columbus, and Alpeter, Reed & Diefenbach, Akron, for appellant.

STEVENS, Judge.

On April 5, 1957, plaintiff filed her action in the Common Pleas Court of Summit County, Ohio, seeking a divorce, alimony, custody of minor child, and support for said child.

On June 10, 1958, the cause came on to be heard before the Judge of the Court of Common Pleas, Division of Domestic Relations, of Summit County, who was also the Judge of the Juvenile Court of said county. After two days' hearing, the court, before making disposition of the divorce case, certified the question of the custody of said minor to the Juvenile Court of said county, by journal entry, and also filed an entry as Juvenile Court Judge accepting such certification of the question of the custody of said minor; to all of which defendant excepted. Plaintiff then rested her case, and defendant moved for a dismissal of plaintiff's petition.

That motion was granted, and the case was dismissed by journal entry.

Thereafter, on the same day, without notice to defendant or his counsel, the Juvenile Court awarded custody of the minor child to the plaintiff without giving any right of visitation to defendant, and without according defendant an opportunity to be heard.

It is from the order of certification to, and the acceptance of that certification by, the Juvenile Court that this appeal on questions of law is prosecuted.

The sole assignment of error is: 'The trial court erred in certifying the question of the custody of the minor child of the parties to the Juvenile Court of Summit County.'

A motion to dismiss the appeal has been filed by appellee because no bond in conformity to the provisions of Section 3109.07, Revised Code, has been furnished by appellant.

However, the instant appeal is not from an order for custody or support, which is the type of appeal in which the statute, supra, requires the filing of a bond, but is an appeal on questions of law from the order of the Court of Common Pleas, Division of Domestic Relations, certifying the question of the custody of the minor to the Juvenile Court of Summit County before the dismissal of plaintiff's action.

In such appeal, the statute, supra, does not require a bond; and, the appeal being on questions of law, no bond is required, because no order of the court is superseded by the mere filing of the appeal.

The motion to dismiss the appeal will be denied.

Was the order of the Court of Common Pleas, Division of Domestic Relations, certifying the question of the custody of the minor child of the parties to the Juvenile Court of Summit County, erroneously made?

Section 3105.21, Revised Code, provides:

'Upon satisfactory proof of any of the charges in the petition for divorce or for alimony, the court of common pleas shall make such order for the disposition, care, and maintenance of the children of the marriage, as is just, and in accordance with section 3109.04 of the Revised Code.'

It will be observed that the Court of Common Pleas has authority, under the foregoing statute, to make an order providing for the custody of the minor children of the marriage 'upon satisfactory proof of any of the charges in the petition for divorce or for alimony.' It would follow, therefore, that, until the production of 'satisfactory proof' of any of the charges in the petition for divorce or alimony in a hearing upon the merits, there is no authority in the Court of Common Pleas to make any permanent order with reference to custody of the children of the marriage or to certify the question of custody to the Juvenile Court.

As applied to the facts of the instant case, the foregoing statement as to certification by the Court of Common Pleas, Division of Domestic Relations, is required because of the provision of Section 2151.23(D), Revised Code, as follows:

'(D) Such court [the Juvenile Court] has jurisdiction to hear and determine the case of any child certified to the court by any court of competent jurisdiction, and to make disposition of said child in accordance with sections 2151.01 to 2151.54, inclusive, of the Revised Code.' (Italics ours.)

The Court of Common Pleas, Division of Domestic Relations, was not a court of 'competent jurisdiction' to certify the custody question to the Juvenile Court, because it was without authority itself to make a custody order, satisfactory proof of any of the charges in the petition for divorce or alimony not having been produced, as evidenced by the dismissal of plaintiff's petition.

The right of the Common Pleas Court, Division...