Miller v. Miller, 32098

• Decision Date: 14 February 1951
• Docket Number: No. 32098,32098
• Citation: 97 N.E.2d 213,154 Ohio St. 530
• Parties: , 43 O.O. 496 MILLER v. MILLER et al.
• Court: Ohio Supreme Court

Page 530

154 Ohio St. 530

97 N.E.2d 213, 43 O.O. 496

MILLER v. MILLER et al.

No. 32098.

Supreme Court of Ohio.

Feb. 14, 1951.

Syllabus by the Court

1. In an action for divorce, alimony and support of minor children, the Court of Common Pleas does not possess general equity powers but can exercise only such power as the statutes expressly give and such as is necessary to make its orders and decrees effective. Marleau v. Marleau, 95 Ohio St. 162, 115 N.E. 1009, approved and followed.

2. In a divorce action, where a child of the parties attains his majority, authority of the court over such child comes to an end, and the court is without power to provide for the support of or aid to such child or to continue a provision for his support. Thiessen v. Moore, 105 Ohio St. 401, 137 N.E. 906, approved and followed.

3. The parties to an action cannot by agreement clothe a court with jurisdiction of subject matter which it does not have.

4. Where in an action for divorce, alimony and support of minor children, a court enters a decree awarding the wife a divorce and the sum of $350 per month for alimony and support of the minor children, the court is without authority, in the absence of contract, to order the husband to keep in force beyond the minority of such children insurance policies on his life with the children as beneficiaries.

On January 27, 1933, Otto Miller, Jr., hereinafter designated plaintiff, filed in the Court of Common Pleas of Henry County an amended petition for divorce against Irene Miller, hereinafter designated defendant.

Plaintiff alleged in his amended petition that he and defendant were lawfully married on September 12, 1923, when he, a Harvard student, was 21 years of age and defendant, a dancer in a Broadway revue, was 30 years of age.

Three children, who at the time of the filing of the amended petition were a girl eight years old, a boy six years old and a girl five years old, were the issue of the marriage.

The amended petition was long and filled with sensational and sizzling charges against defendant who, on February 23, 1934, filed an answer and cross-petition for divorce, reasonable temporary and permanent alimony, reasonable attorney fees, custody of the minor children, an order for their support and maintenance, an injunction against the transfer by plaintiff of any of his assets or expectations by will or otherwise, and for such other relief as defendant might be entitled to receive.

Defendant's answer and cross-petition was likewise filled with sensational and sizzling charges against plaintiff.

After a bitterly contested trial the court awarded a divorce to defendant upon the ground of gross neglect of duty.

During the progress of the litigation plaintiff's grandmother died and in her will established a trust by which plaintiff became the recipient of an annuity of $15,000 a year during his lifetime. The court directed the defendant trustees to pay from this annuity the attorney fees and the sum of $350 per month to the defendant for her support and the support of the minor children.

The monthly allowance of $350 is still being paid.

It appears that after his grandmother died plaintiff took out life insurance policies on his life in the sum of $75,000, naming his three children as beneficiaries.

In the decree of the court, after provisions that defendant 'be and she is hereby awarded alimony for her support and the support of the minor children aforesaid in the sum of three hundred and fifty dollars ($350) per month, beginning as of June 1st, 1934, until the further order of the court' and after provisions as to attorney fees, it is stated: 'The plaintiff has already applied for and received life insurance policies Nos. 1426559, 1426560, 1426561, issued by the Sun Life Assurance Company upon the plaintiff's life in the sum of seventy-five thousand dollars ($75,000) in favor of the minor children aforesaid in equal shares, and it is hereby ordered, adjudged and decreed that the plaintiff keep said policies of insurance in full force and effect during his lifetime by promptly paying the premiums thereon and by doing all other necessary acts for the purpose aforesaid; * * * and said plaintiff is hereby permanently enjoined and restrained from changing the beneficiaries aforesaid of said insurance policies, except that he may and he hereby is ordered, if he has not already done so, to make provision with said Sun Life Assurance Company that, in the event one or two of said minor children predecease the plaintiff, then the entire proceeds of said policies shall inure to the benefit of the survivor or survivors of said three minor children in equal shares, unless hereafter modified by the future order of this court.'

Both the plaintiff and the defendant excepted to the decree of the court but neither appealed therefrom.

The decree above referred to was entered July 5, 1934, and on October 24, 1935, a decree was entered which changed the former decree with reference to the insurance policies and ordered that plaintiff obtain three separate policies upon his life, payable in equal amounts to his three children, and that the trustees pay the initial premiums upon the same and continue to pay the premiums during plaintiff's lifetime. Otherwise there was no change in the original decree.

On March 17, 1949, plaintiff filed an amended motion for an order modifying the order of the court of July 5, 1934, and the further order of the court of October 24, 1935, in which motion he represented that the children of himself and defendant were then more than 21 years of age; that he, plaintiff, had remarried and was the father of five minor children of the ages of 13, 11, 9, 8 and 7 years, respectively, with whose maintenance, as well as the maintenance and support of his second wife, he was then legally charged; and that the court had no jurisdiction or power to appropriate money belonging to plaintiff for the maintenance of the children of plaintiff and defendant after such children reached the age of majority.

In the amended motion plaintiff prayed that the order of the court be modified by releasing him from all obligations of paying the premiums on the insurance policies, that the trustees in charge of his annuity be directed to refrain from further payment of the premiums accruing on the policies, and that plaintiff be permitted to cancel the policies and receive the cash surrender value thereof.

After a hearing, during which it was conceded that the children (intervening defendants) of plaintiff and defendant were of age, the court overruled plaintiff's amended motion.

Upon appeal the Court of Appeals, Ohio App., 97 N.E.2d 209, reversed the judgment of the Court of Common Pleas, with one judge dissenting, and held that the provisions of the journal entries of July 5, 1934, and October 25, 1935, with reference to the insurance policies are void; that the defendant and her children have no interest in the policies; and that plaintiff has the right to cancel the policies and receive the cash surrender value thereon, to change the beneficiaries therein or to convert the policies into other contracts of insurance compatible with the provisions of the present policies. The court permanently enjoined the trustees from making any further payment of premiums on the policies; ordered the trustees to pay in the future to plaintiff the funds formerly required to pay the premiums; vacated the injunction theretofore made against plaintiff enjoining him from changing the beneficiaries of the policies; and ordered the delivery and surrender of the policies to plaintiff.

The case is before this court upon the allowance of a motion to certify the record.

Corrigan, McMahon & Corrigan, Cleveland, for appellants.

David Meekison, George A. Meekison and Otto W. Hess, Napoleon, for appellee Otto Miller, Jr.

Squire, Sanders & Dempsey, Cleveland, for appellee trustees.

STEWART, Judge.

The main question before this court is whether the Court of Common Pleas had the power or authority to make the order it did with reference to the insurance policies involved in the present case. It must be conceded that if the court had jurisdiction to make the order in question plaintiff is bound by it, no appeal having been prosecuted therefrom.

In divorce and alimony matters, the Court of Common Pleas does not possess general equity powers. Its jurisdiction in such matters is fixed by Sections 11979 to 12003, inclusive, General Code.

Section 11991, fixing the authority of the court with reference to...