Istnick v. Istnick
| Decision Date | 21 November 1973 |
| Docket Number | No. DR-50099,DR-50099 |
| Citation | 307 N.E.2d 922,37 Ohio Misc. 91 |
| Parties | , 66 O.O.2d 244 ISTNICK v. ISTNICK. |
| Court | Ohio Court of Common Pleas |
Sherlock H. Evans, Massillon, for plaintiff.
Paul E. Brown, Massillon, for defendant.
The defendant-husband and -father moves for a termination of child support as to Daniel, aged 18. He is a high school graduate and enrolled at Bowling Green State University.
The parties were divorced on January 19, 1968, at which time a comprehensive separation agreement was made the order of the court. The agreement grants possessory rights to the family residence to the mother-custodian until 'the youngest living child of the parties reaches the age of 21 years . . .'. Specifically with respect to support, the agreement recites:
.
Daniel is the youngest living child.
The motion calls into question the application of Senate Bill No. 1, effective January 1, 1974, reducing the age of majority from 21 to 18. The bill calls for over 80 statutes of Ohio to be modified-in most cases, simply striking '21' and inserting '18'. The prirmary change is in R.C. 3109.01, which will then read: 'All persons of the age of 18 years or more, who are under no legal disability, are capable of contracting and are of full age for all purposes.'
DOMESTIC RELATIONS CONSIDERATION. In an eleventh-hour amendment, children receiving support and continuously attending a high school were entitled to continued receipt of such support notwithstanding attainment of age of majority (18). R.C. 3103.03. (An effort to preserve 'testator's intent' as to wills and trusts was defeated.)
Within the domestic relations arena, the effect of reduced age of majority to 18 will appear as to prior decrees in four (4) separate ways:
1) A support order 'until majority' or other similar language.
2) A support order 'until 21' or similar language.
3) A court order approving a separation agreement providing for support 'until majority' or other similar language.
4) A court order approving a separation agreement providing for support 'until age 21' or other similar language.
EFFECT WHERE NO SEPARATION AGREEMENT. Where the language of the court order fixes support 'until majority,' after January 1, 1974, such support order-no matter when made-will terminate as to any child who has attained age 18. This conclusion may be drawn as a matter of law and should require no affirmative act by the Obligor.
Where the court order fixes support until age 21, the effect of the new legislation is to render such an order, after January 1, 1974, in effective as to any child who has attained age 18. Divorce and Alimony-Alone are remedies especially provided by the Legislature, which has the clear right to determine the ground rules for primary relief as well as ancillary relief, including obligations of custody and support.
Thiessen v. Moore (1922), 105 Ohio St. 401, 14 Ohio App. 460, 137 N.E. 906, held that a domestic relations court is 'without power' to make decrees with reference to maintenance of minor children beyond majority. Accord Miller v. Miller (1951), 154 Ohio St. 530, 97 N.E.2d 213; Dase v. Dase (1958), 78 Ohio Law Abst. 144, 152 N.E.2d 20; Kennedy v. Kennedy (1959), 111 Ohio App. 432, 165 N.E.2d 454, 12 O.O.2d 201; Beilstein v. Beilstein (1945), 43 Ohio Law Abst. 10, 61 N.E.2d 620, 31 O.O. 116. Notwithstanding the language of the court order, the obligor should not have to file a motion to reduce or modify a prior court order of support to achieve termination for a child who reaches age 18 before or after January 1, 1974. Such requirement would be a vain act in the face of the clear lack of jurisdiction in the court to make such orders.
EFFECT WHERE APPROVED SEPARATION AGREEMENT. Despite protestations of lack of power or jurisdiction to make orders beyond the limits permitted by the Legislature, a clear line of cases has evolved in the state of Ohio, granting to a domestic relations court the authority and responsibility to oversee...
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Nokes v. Nokes
...time the divorce was granted.' Upon a hearing, the referee found that this case falls within the clear dictates of Istnick v. Istnick (1973), 37 Ohio Misc. 91, 307 N.E.2d 922, and '(c)onsequently, the court must and does find that the college education of the two elder girls, both over the ......
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...for contempt. Code § 30-204. Several other states have also held that such a decree is enforceable by contempt. In Istnick v. Istnick, 37 Ohio Misc. 91, 307 N.E.2d 922 (1973) it is said: 'Despite protestations of lack of power or jurisdiction to make orders beyond the limits permitted by th......
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Brown v. Smith, CA
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