Schwalenberg v. Schwalenberg

• Decision Date: 02 May 1940
• Citation: 65 Ohio App. 217,29 N.E.2d 617
• Parties: SCHWALENBERG v. SCHWALENBERG.
• Court: Ohio Court of Appeals

29 N.E.2d 617

65 Ohio App. 217

SCHWALENBERG v. SCHWALENBERG.

Court of Appeals of Ohio, Seventh District, Columbiana.

May 2, 1940

Syllabus by the Court.

1. The right of a minor over ten years of age to elect with which of his divorced parents he wishes to live is controlled by Section 8033, General Code, and the statute is mandatory in operation unless the parent so selected is unfit by reason of moral depravity, habitual drunkenness, or incapacity, in which event the court will select the proper custodian.

2. In such case, the burden of proof is upon the parent seeking modification of a decree awarding custody of a child, at the child's election, to the other parent to show unfitness by reason of moral depravity, habitual drunkenness or incapacity of such other parent.

3. It is not error, in such case, for the court to refuse to entertain evidence of that parent's habits earlier than one year immediately preceding the hearing, as this matter rests in the sound discretion of the trial court.

J P. Morgan, of Youngstown, for appellant.

Riddle & Riddle, of Lisbon, for appellee.

PHILLIPS Judge.

Defendant appealed to this court on questions of law and fact from a final order of the Juvenile Court of Columbiana county sustaining plaintiff's motion to modify its former order with respect to the custody of a ten-year-old child of the parties, who were divorced, the child having elected to live with the plaintiff under authority of Section 8033, General Code, which provides 'Upon hearing the testimony of either or both of such parents, corroborated by other proof, the court shall decide which one of them shall have the care, custody and control of such offspring, taking into account that which would be for their best interests, except that, if such children be ten years of age or more, they must be allowed to choose which parent they prefer to live with, unless the parent so selected, by reason of moral depravity, habitual drunkenness or incapacity, be unfitted to take charge of such children, in which event the court shall determine their custodian. The above provisions permitting children to choose the parent with whom they desire to live, also shall apply to proceedings for modification of the former orders of the court, fixing the custody thereof, as in original actions. If upon such hearing it should be proved that both parents are improper persons to have the care, custody and control of their children, in its discretion, the court may either designate some reputable and discreet person to take charge thereof, or commit them to a county or district children's home in which they or their parents have a legal settlement.'

This case is not properly appealable as one on law and fact and by agreement of counsel in open court it was submitted as an appeal on questions of law. Accordingly the appeal as filed is dismissed and it appearing that a bill of exceptions has been properly filed herein, the case will be retained and determined as an appeal on questions of law.

It is conceded by both parties that where the custody of a child is in dispute and the parents cannot agree thereon, the welfare of the child is of the paramount consideration. The conceded fact is that the homes of either of the parties, each of whom has since remarried, is a proper environment in which to raise the minor whose possession is in dispute.

The week before his election the boy was with the defendant and for some six weeks prior thereto was in the custody of the plaintiff, and it is claimed by the defendant that the boy was unduly influenced in his election by plaintiff who took him on fishing trips and automobile rides, to soap box derbies, and gave him gifts during that time. The evidence discloses that this entertainment occurred in the natural course of events in the household of the plaintiff and was the natural expression of affection of a father for his son and, as found by the trial court, was not done for the purpose of unduly influencing the boy.

The foregoing, in conjunction with the fact that by agreement of counsel the boy was interviewed privately by the court before a stenographer as to his choice at a time when he...