Tanner v. Tanner

• Decision Date: 21 June 1945
• Citation: 78 Ohio App. 178,62 N.E.2d 654
• Parties: TANNER v. TANNER.
• Court: Ohio Court of Appeals

62 N.E.2d 654

78 Ohio App. 178

TANNER v. TANNER.

Court of Appeals of Ohio, Second District, Franklin.

June 21, 1945

Frank H. Ward, of Columbus, for plaintiff-appellant.

James F. Decker, of Columbus, for defendant-appellee.

HORNBECK Presiding Judge.

This is an appeal from orders of the Court of Common Pleas, Division of Domestic Relations.

The essential facts to an appreciation of the question presented are that the plaintiff and her husband, William Tanner, were parties to a divorce case in which she was the plaintiff. A decree of divorce was granted to the plaintiff but the custody of their four children was awarded to the defendant. Later, he died and thereafter plaintiff made application under the original action for divorce for the custody and control of the minor children. The form and language of this application is not in the transcript of docket and journal entries, but it is recited as having been made in the entry determining the custody of the children. The custodial entry recites that upon the evidence adduced the Court finds that the plaintiff is not a fit and proper person to have the custody and control of the four minor children and further that it would be for the best interest of the children to award their custody and control to four persons who are named and who appear on this appeal as appellees and custodians of the children.

Within three days plaintiff, who since the divorce decree has married and whose name is now Retha Jones, by motions sought a new trial and to have the custodial decree set aside. In the motion for new trial plaintiff asserted that she was appearing only for the purpose of raising the question of jurisdiction of the Court to make the custodial order and in both motions she asserted that the order was contrary to law.

The motion for new trial was sustained and the cause came on for hearing to the judge of the Domestic Relations Court. The bill of exceptions made upon this hearing is before us and consists only of statements of counsel and the Court's presentation of authorities and argument. The Court advised counsel for the plaintiff that he would hear testimony touching the fitness of the plaintiff to have custody of her children, but counsel elected to stand upon his claim that the Court was without jurisdiction to determine the question of custody against the right of the plaintiff. The Court then overruled both motions and from this action the appeal is prosecuted.

The one question urged in the trial court is made the basis of the appeal, namely, that upon the death of plaintiff's former husband, William H. Tanner, Jr., the Court in which the divorce proceedings were had lost all jurisdiction to make an order which would take from the plaintiff her right to the custody of the children which right arose upon the death of her husband.

Appellant cites and relies upon two sections from 14 O.Jur. Section 138, page 541, and Section 147, page 551, the first of which is:

'The jurisdiction of courts to award the custody and control of minor children to one of the parents in a divorce or alimony proceeding, being merely incidental thereto and operating only inter partes, terminates upon the death of either of the parents, and the surviving party is thereby relegated to his or her natural rights with respect to the custody of such children.' Citing Weiss v. Fite, 19 Ohio App 309; In re Gerbig, 11 Ohio N.P.,N.S., 529.

The latter section is:

'A decree awarding the custody of children in a divorce or alimony proceeding terminates upon the death of either of the parents, and the natural rights of the surviving parent, which have in the meantime been merely held in abeyance, are thereby revived.' Citing the aforementioned cases and also In re Lutkehaus, 22 Ohio N.P., N.S., 120.

The plaintiff may be heard to question the jurisdiction of the Court which made the order to which she objects, if it had power to accept the jurisdiction, for two reasons, by her application for a custodial award, and by the motion for a new trial she invoked the jurisdiction of the Court.

We may concede that the decree awarding the custody of the children to the husband ceased to be effective upon his death and that thereupon the plaintiff, the mother of the children, prima facie had the right to their custody, but the actual custody...