Levi v. Levi

• Decision Date: 27 April 1960
• Docket Number: No. 36176,36176
• Citation: 170 Ohio St. 533,166 N.E.2d 744
• Parties: , 11 O.O.2d 364 LEVI, Appellee, v. LEVI, Appellant.
• Court: Ohio Supreme Court

Page 533

170 Ohio St. 533

166 N.E.2d 744, 11 O.O.2d 364

LEVI, Appellee, v. LEVI, Appellant.

No. 36176.

Supreme Court of Ohio.

April 27, 1960.

Syllabus by the Court.

The Uniform Reciprocal Enforcement of Support Act, effective in North Carolina and Ohio, is a measure designed to afford a practical method, in addition to other remedies, to enforce the legal obligation to support a dependent or dependents by one who has left the state in which the dependents reside. And, where an abandoned wife in North Carolina on behalf of herself and minor children initiates a proceeding in that state under such act to secure such support from her husband who resides in Ohio and is the father of the children, a preliminary hearing is had thereon and a transcript of the proceeding is certified to the appropriate court in Ohio where the husband and father personally appears and testifies, and the Ohio court makes a support order against him in substantial accordance with the provisions of the Ohio act and with which order he partially complies over a period of years, it is then too late for him, when cited for contempt by reason of his failure to make the ordered payments, and while he is delinquent, to challenge for the first time the constitutionality and validity of the act and the order made in the proceeding.

The facts are stated in the opinion.

W. Robinson Watters, Columbus and Thomas H. Coe, Salem, for appellant.

Charles W. Ayers, Mt. Vernon, Pros.Atty., for appellee.

ZIMMERMAN, Judge.

This cause is here for decision on an appeal as of right and the allowance of a motion to require the Court of Appeals for Knox County to certify the record, that court on appeal having affirmed the judgment of the Court of Common Pleas. The matter arises under the so-called Uniform Reciprocal Enforcement of Support Act approved in 1950 by the National Conference of Commissioners on Uniform State Laws and adopted the following year in both the states of North Carolina and Ohio. The Ohio act is found in Chapter 3115, Revised Code, under the heading, 'Support of Dependants.' Reciprocal statutes of this type are designed to provide a practical method, in addition to other remedies, to enforce the legal obligation to support a dependent or dependents by one who has left the state in which the dependents reside and has abandoned them. In the instant controversy North Carolina is the initiating state and Ohio the responding state.

Professor W. J. Brockelbank, in an article appearing in 5 Arkansas Law Review (1951), 349, outlines the purpose and procedure of the 1950 Uniform Act, which is pretty much the same now, as follows:

'The idea of a two-state procedure originated with the New York act. This idea was adopted by the Uniform Law Commissioners in the Uniform Reciprocal Enforcement of Support Act, and the difference between the two acts on this matter is chiefly one of form. Reduced to its simplest terms the two-state proceeding is as follows: It opens with an action which normally will be commenced in the state where the family has been deserted (the initiating state). A simplified petition is filed. The judge looks it over to decide whether the facts show the probable existence of a duty of support, and if they do he sends the petition and a copy of the act to a court of the responding state to which the husband has fled or in which he has property. That court will then take the steps necessary to obtain jurisdiction of the husband or his property, will hold a hearing and if the court finds that a duty of support exists, may order the defendant to furnish support and will transmit a copy of its order to the court in the initiating state. To enforce compliance with its orders the court may subject the defendant to such terms and conditions as it may deem proper, may require him to furnish bond or make periodic payments or, in case of refusal, may punish him for contempt. It has the duty to transmit to the initiating court any payments it receives and upon request to furnish a certified statement of those payments. The initiating court must receive and disburse these payments.'

It appears that the plaintiff, Rachel Pettit Levi, appellee herein, a resident of North Carolina, initiated a proceeding under the North Carolina statutes in the Superior Court of Buncumbe County, North Carolina, against David B. Levi, the defendant, appellant herein, for the support of herself and their three minor children. There was no personal service on the defendant. Upon hearing, at which plaintiff testified as to her straitened circumstances, the court found that defendant is the husband of plaintiff and the father of the minor children, that he is responsible for their support, that he is residing in the city of Mount Vernon, Ohio, and that, according to the testimony of the plaintiff, the sum of $180 per month is needed for the maintenance of herself and the children. The court entered an order to that effect, and a transcript of the proceeding was certified and forwarded to the Court of Common Pleas of Knox County, Ohio, and the prosecuting attorney of that county was notified thereof. The cause was docketed in the Ohio court and assigned for trial. Defendant appeared with counsel and testified to the effect that he was the husband of plaintiff and the father of the minor children. He also stated the amount he was earning, whereupon the court entered and signed an order, the essential parts of which read as follows:

'On this 29th day of May, 1954, this cause came on to be heard under the Uniform Reciprocal Support Law on the complaint of the obligee herein, Charles W. Ayers, prosecuting attorney of Knox County, Ohio, representing the initiating state of the state of North Carolina; the obligor David B. Levi being present and represented by counsel and with this court acting as the court for the responding state of the state of Ohio.

'The court finds that the obligor, David B. Levi, is the husband of Rachel Pettit Levi and the father of the children named in the petition.

'It is, therefore, ordered that David B. Levi pay the sum of $100 per month, plus poundage through the office of the clerk of courts of Knox County, Ohio, to Rachel Pettit Levi beginning with the month of June, 1954, and each and every month thereafter until the further order of the court.

'It is further ordered that the clerk of courts of Knox County, Ohio, upon receipt of the payment pursuant to the foregoing order by David B. Levi, transmit the same forthwith to the Superior Court of Buncumbe County, North Carolina, to be delivered to Rachel Pettit Levi.

Such order was approved in writing by the prosecuting attorney of Knox County and by the then attorney for the defendant, and the defendant made partial payments pursuant thereto. Because of delinquency, defendant was twice cited for contempt. On the second citation in July 1958, defendant, through new counsel, filed a motion to set aside and vacate the order...