Nokes v. Nokes

Decision Date07 July 1976
Docket NumberNo. 76-59,76-59
Parties, 1 O.O.3d 1 NOKES, Appellee, v. NOKES, Appellant.
CourtOhio Supreme Court

This cause, like Rosenfeld v. Rosenfeld (1976), 47 Ohio St.2d 12, 351 N.E.2d 181, decided this day, arises out of a pre-1974 divorce decree providing for the support of minor children by their father. In this case, however, a separation agreement was neither incorporated into the decree nor executed by the parties.

The August 9, 1972, divorce decree provides that Richard F. Nokes, appellant herein, shall pay certain sums for the support of his 'minor children' and that he '* * * shall also provide a college education to any of his children desiring the same, and shall be responsible for all of their expenses for such advanced education at rates provided for in state universities.'

On April 28, 1975, appellee, Gay L. Nokes, filed a 'charge of contempt' against appellant, which alleges that '* * * the children Laura and Barbara desire a university education, that Laura is already accepted at the University of Cincinnati, a state university, and Barbara is accepted at Capital University with a grant of financial aid which makes her college expenses less than that at a state university; that Laura requires an oboe, both girls being accepted in a Conservatory of Misic. Defendant (father) has thus far failed, neglected or refused to furnish said children with such college education pursuant to the order of this court in full force and effect and as part of the award made at the 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 age of eighteen and both no longer high school students, are in fact emancipated, and the defendant has no further legal obligation to provide for their support in any manner.'

Upon review, the Court of Common Pleas upheld the findings of the referee and ruled:

'* * * that the obligation of the defendant to support the two oldest children of the parties, twin daughters Laura and Barbara, will cease on their eighteenth birthday July 14, 1975, they having graduated from high school; and the defendant need not provide for the college education of said children and pay their expenses for advanced education at rates provided for in state universities as set forth in the judgment entry of divorce granted August 9, 1972, nor is defendant required to furnish an oboe for the daughter Laura for use in such advanced education.'

The Court of Appeals framed the issue as follows:

'Where there is an (incorporated separation) agreement of the parties there is no great difficulty in reaching a conclussion. An agreement of the father to provide education beyond majority, is enforceable. Is a court order only, providing a college education, enforceable as against a father who desires to cease providing support at age 18, even though at the time the order was made the age of majority was 21 years?'

The court concluded that '* * * the order of the trial court entered on August 9, 1972, is enforceable as written until the children reach age 21 subject to change only under proof of changed circumstances * * *,' reversed the judgment of the trial court, and, finding that its judgment is in conflict with Allison v. Allison (1975), 44 Ohio App.2d 230, 337 N.E.2d 666, certified the record of this cause to this court for review and final deteremination pursuant to Section 3(B)(4), Article IV of the Ohio Constitution.

Robert D. Moss, Barberton, for appellee.

Richard L. Goldsmith, Jr., Arkon, for appellant.


In recent years, numerous states, after statutorily reducing their age of majority from 21 to 18, have been asked to decide whether, and to what extent, decretal provisions for child support until majority or emancipation are affected by the law. The resulting decisions are contradictory and irreconcilable, and, accordingly, a review thereof would serve little purpose herein.

We start with the proposition that a court retains continuing jurisdiction over child support orders contained in divorce decrees (Van Divort v. Van Divort (1956), 165 Ohio St. 141, 134 N.E.2d 715, paragraph one of syllabus) and is empowered to modify such orders '* * * as to future installments * * * throughout the duration of the order.' Smith v. Smith (1959), 168 Ohio St. 447, 450, 156 N.E.2d 113, 116.

In Miller v. Miller (1951), 154 Ohio St. 530, 536, 97 N.E.2d 213, 216, the court phrased 'the sole question before * * * (it as) whether the (trial) court had any power or authority to order plaintiff (father) to keep the insurance policies alive in favor of his children after the latter had attained their majority.'

The court responded in the negative to that question, and concluded, in paragraph four of the syllabus, that 'the court is without authority, in the absence of contract,' to issue such order which extends beyond the children's attainment of majority. Paragraphs two and three of the Miller syllabus read:

'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.

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

The foregoing rules of law would appear to create a favorable environment for the implementation of legislative goals, such that a change in the age of majority may be readily implemented by the courts. However, appellee argues that a change in the age of majority should have no effect on extant decretal support obligations. Appellee specifically urges that a parental obligation to support children arising from a divorce decree 'should be the same' as the obligation arising from a separation agreement incorporated into a divorce decree.

We readily accept the foregoing premise. Certainly, all minor children should receive the protection of R.C. 3103.03 * to be supported by their parents. However, such support should not be dependent upon the presence or absence of parental contracts or court decrees. Children of nondivorced parents need no such artifice to bolster their claim to support. The common-law duty to support one's minor children has been replaced by R.C. 3103.03. Such statute should apply uniformly neither unimpeded nor unspurred by extraneous parental obligations. Appellee appears to recognize the proper context of support obligations in the statement of her 'position that the enforceability of divorce decrees including provisions for education is directly dependent on the parental duty of child support imposed by law.'

Appellee suggests that the 'law' is found in paragraph two of the syllabus in Mitchell v. Mitchell (1960), 170 Ohio St. 507, 166 N.E.2d 396, which reads:

'In a divorce action, it is not abuse of discretion as a matter of law for the trial court, having jurisdiction of the parties, to order payments by the father for the college education of minor children electing to matriculate in an accredited college.'

Certain words used in that syllabus, however, subvert its utility in the present matter. As the court specifically observed, at page 509, 166 N.E.2d at page 398, '* * * we are not concerned with college provisions for the children after the age of 21, a factor which has complicated some other cases, since the agreement here specifically concerns only minor children. (The fact that such provision extended past the children's 21st birthdays was the basis of Judge Zimmerman's dissent in the Robrock (v. Robrock (1958), 167 Ohio St. 479, 150 N.E.2d 421) case, supra.)' (Emphasis sic.) The court, at page 510, 166 N.E.2d at page 399, also found it 'unnecessary * * * to consider the propriety of judicially noticing whether the passing years have increased the necessity for, or the desirability of, higher education,' but noted that the father had conceded such necessity in his brief.

We need not now reexamine Mitchell, but we doubt the propriety of inferences therein that a court may impose a child support obligation which exceeds the statutory duty of all parents, whether married or divorced, to support their minor children.

We also need not herein reexamine Robrock v. Robrock, supra, cited in Mitchell, inasmuch as that case involved a separation agreement incorporated into the decree. However, in light of the issues presented in the Rosenfeld case, that all divorce decrees, whether derived from an agreement of the parties or otherwise, have independent force, we examine the last two paragraphs of the Robrock syllabus, which read:

'4. In a divorce case, the court, to give effect to a separation agreement, has the power to incorporate it in the divorce decree or base the decree on its provisions even though the court, in the absence of an agreement of the parties, would not have the power to make the resultant decree.

'5. Where, as part of a valid agreement, a husband agrees to provide a college education for his children and further agrees to keep in effect insurance policies on his life in which such children are beneficiaries, and where such agreement is incorporated in a decree divorcing the husband from his wife, such decree becomes binding upon the husband even though the performance required by the decree may extend beyond the minority of the children.'

We note first that paragraphs four and five are in total contradiction to the herein quoted paragraphs two and three of the syllabus in Miller v. Miller, supra (154 Ohio St. 530, 97 N.E.2d 213). Thus, paragraphs four and five are aberrations, isolated in time and circumstance.

Secondly, the...

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