Tullis v. Tullis

• Decision Date: 30 April 1941
• Docket Number: 28248.
• Parties: TULLIS v. TULLIS.
• Court: Ohio Supreme Court

34 N.E.2d 212

138 Ohio St. 187

TULLIS v. TULLIS.

No. 28248.

Supreme Court of Ohio

April 30, 1941

Syllabus by the Court.

A decree in a divorce action, unconditionally fixing the amount and method of payment by the husband for the support of a minor child pursuant to and in accordance with a previous contract of separation between the husband and wife providing for complete property settlement and support to their minor child, which contract is specifically approved by the court and made a part of the decree, may not, in the absence of fraud or mistake, be subsequently modified by the court so as to lessen the amount of support for such minor child.

Appeal from Court of Appeals, Wood County.

On September 10, 1936, Frederick W. Tullis, appellee, and Chesbrough L. Tullis, appellant, husband and wife, entered into a separation agreement whereby the former assigned and transferred to the latter all his interest in the household furniture and goods in the family residence, and the latter released all claims by way of dower, inheritance and descent in and to the property of Frederick W. Tullis, all claims to a distributive share of his personal estate, all claims for year's support and all claims as widow and heir at law. The contract further provided that if an action for divorce was instituted by either party, she, the appellant, would not ask or apply for any allowance for counsel fees or any alimony, but would ask only for the allowance for the support of their daughter as in the contract provided. The contract specifically provided that Frederick W. Tullis would pay his wife, appellant herein, for the support, maintenance and education of such minor child the sum of $100 per month until September 27, 1943, when the minor child will be 12 years of age, the sum of $125 per month from October 1, 1943, until September 27, 1946, and $150 per month from October 1, 1946, until September 27 1952, when the minor child will be 21 years of age.

On November 7, 1936, Chesbrough L. Tullis, the wife, brought an action for divorce in the Common Pleas Court of Wood County against Frederick W. Tullis on the ground of extreme cruelty. The action was not contested and on January 15, 1937, a decree was entered by the court granting the appellant a divorce as prayed for and approving and making the contract above referred to for the maintenance and support of the minor child, Chesbrough Tullis, a part of the decree.

On November 18, 1939, Frederick W. Tullis, appellee herein filed in the same case, in the Common Pleas Court, a motion to alter or modify the former decree of the court for various reasons set out in the motion, the most important being that when the decree for support of his minor child was originally entered by the court he was employed at a salary of $300 per month and had personal property of substantial volume, which salary and property he had in the meantime lost, that he was then earning but $100 per month, all of which was required for his own support, and that his former wife had since remarried and had ample funds for the care and support of their minor child.

Appellant moved to dismiss the motion of appellee on the ground that the court was without jurisdiction to hear the same since the decree for alimony and maintenance of the child was based on a written agreement between the parties which was incorporated in the original decree. The Common Pleas Court sustained the motion to dismiss, and dismissed appellee's motion to modify the decree.

The appellee appealed from the judgment of the Common Pleas Court to the Court of Appeals on questions of law, and the latter court by unanimous decision reversed the judgment of the former court and remanded the cause to the Common Pleas Court for determination by it of the motion to modify the original decree.

The appellant, after securing leave to amend her notice of appeal, filed in this court an appeal as of right and a motion to certify the record for final review, which motion was allowed.

Ray D. Avery, of Bowling Green, and Doyle & Lewis, of Toledo, for appellant.

Bowman & Hanna, of Bowling Green, and Geer, Lane & Downing, of Toledo, for appellee.

HART Judge.

The question to be determined is: Did the Common Pleas Court have jurisdiction to reduce the amount theretofore decreed by the court to be paid by the father for the support of his minor child, when the court entering such decree in a divorce action between the parents incorporated therein the terms of a written contract of separation theretofore entered into between such parents effecting a complete property settlement and providing for the payment of specific amounts for a specified time by the father for the support and maintenance of the minor child, the retention of such jurisdiction for such purpose not being provided for either by the agreement or the order of the court?

The answer must be found in the application of the statutes, the character and validity of the contract between the parties for the support of their minor child, and the nature and character of the judgment of the court in making that contract a part of its decree.

Section 7997, General Code, provides that 'The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able.' Section 8000, General Code, provides that husband and wife may by contract agree upon an immediate separation and make provisions for the support of their children during the separation.

The contract in such case does not exonerate either parent from his or her ultimate duty to support his or her minor child. A father may contract to maintain his child and the mother may exact security for the performance of such contract to protect herself from further obligation to the extent of the father's contribution. But each must see that the child does not suffer for support, and must protect the public from the expense of supporting such child. The duty in this regard is personal and continuing and cannot be discharged by any contract with the other parent. This duty must be discharged in any event, but if the obligee is obliged to provide such support he may compel reimbursement from the obligor to the extent of the contract obligation. Bowen v. State, 56 Ohio St. 235, 239, 46 N.E. 708. However, if the amount agreed upon in any contract of settlement between the parties for the support of their minor children is insufficient for that purpose, the court may require the payment of additional sums, notwithstanding the contract.

The contract of separation between the parties in this case was complete and final as between themselves and likewise final as to the support of their minor child so far as they could make it final under the law. The appellant had a legal right to make a contract with the appellee for her permanent support and for the support of their minor child. She had the right to make such contract for the support of the child, not only in its behalf but in her own behalf to protect herself against her secondary liability under the statute for the support of their child. The consideration for such contract was adequate and complete and the contract was mutually and permanently binding on both parties. Apparently, all that she received as a result of the contract, other than indemnity against her secondary liability for the support of the child, was the household goods belonging to the parties. She waived and surrendered all permanent right of support guaranteed by the statute to herself. She also permanently waived every possible right which she might have in any present or future property or estate of her busband and discharged him from every claim of every kind whatsoever except as provided by the contract. These were absolute and complete surrenders which she could not reclaim and which no court could or would set aside so long as the contract was carried out by the appellee. Hoagland v. Hoagland, 113 Ohio St. 228, 148 N.E. 585. Apparently, she made these surrenders in lieu of the provisions contained in the contract for the benefit of her child. These surrenders of right on her part were confirmed by the decree of the court and are now being enjoyed and will be permanently enjoyed by the appellee who makes no offer to restore them or place her in statu quo when he asks the court to modify and lessen his contractual obligation to support his minor child. He proposes to repudiate the obligation and at the same time retain the consideration through which the obligation arose. From a purely contractual standpoint no court should, under the law, grant the relief sought by the appellee.

The appellee claims that in an action for divorce and alimony between the parents of minor children, the court may enter a permanent or final decree as to alimony or division of property rights between the husband and wife, but that as to minor children, the court has continuing jurisdiction and may from time to time modify its decree as to their support, depending upon the changed conditions and circumstances of the parent responsible for such support; and that even where such contract has been made a part of the divorce decree, the allowance so made is not conclusive and final but may be increased or diminished by the court as public policy may dictate or circumstances may warrant.

This court has frequently held that where a decree of divorce provides for the support of minor children of the divorced parents, the jurisdiction of the court is continuing in character and no express reservation in the decree itself is necessary to support such continuing jurisdiction. Corbett v. Corbett, 123 Ohio St. 76, 174 N.E. 10.

This court has also held that even...