Van Divort v. Van Divort

• Decision Date: 18 April 1956
• Docket Number: No. 34475,34475
• Citation: 134 N.E.2d 715,165 Ohio St. 141,59 O.O. 207
• Parties: , 62 A.L.R.2d 538, 59 O.O. 207 VAN DIVORT, Appellee, v. VAN DIVORT, Appellant.
• Court: Ohio Supreme Court

Page 141

165 Ohio St. 141

134 N.E.2d 715, 62 A.L.R.2d 538, 59 O.O. 207

VAN DIVORT, Appellee, v. VAN DIVORT, Appellant.

No. 34475.

Supreme Court of Ohio.

April 18, 1956.

Syllabus by the Court

1. A court having jurisdiction over the parties to render judgments in respect to divorce and alimony and custody and support of minor children of divorced parties retains continuing jurisdiction over matters relating to the custody, care and support of such children, and such continuing jurisdiction is retained regardless of any express reservation in the original decree.

2. To secure a modification of a decree of divorce with respect to the custody, care or support of minor children of the parties, court practice requires the filing of an application or motion in the original divorce action by the party seeking such modification, which application or motion shall advise the court and the opposite party of the conditions relied upon as justifying a modification of the decree.

3. Under the continuing jurisdiction of the court in a divorce action, the filing of an application or motion for a modification of an order or decree for care, custody and support of minor children of the parties is not the institution of a new or original proceeding but of one ancillary and incidental to the original action, and no new service of summons on a party is necessary to give the court jurisdiction to make rurther orders as to minor-child support, regardless of the place of residence of such party.

4. In the absence of statutory procedure for the notification of a party to a divorce action of the filing of an application or motion by the other party for a modification of a decree for the care, custody or support of minor children of the parties, the court may, within its sound discretion, make rules for the service of notice of such application or motion, and, where the court adopts a rule providing for the service of writs or process by mail pursuant to, in accordance with, and to the extent permitted by Section 11297-1, General Code (Section 2703.23, Revised Code), providing for the service of writs or process, and service on a party of notice of such an application or motion is made by mail in accordance with such rule, whereby such party receives actual notice of such application or motion, the court has jurisdiction to consider such application or motion and to modify such decree.

On August 20, 1948, an action for divorce, alimony and custody of children was instituted by the plaintiff against the defendant in the Court of Common Pleas of Franklin County, Division of Domestic Relations. The defendant was served personally with summons and a copy of the petition when the action was instituted. Thereafter, a divorce was granted to the plaintiff; the custody of the two minor children of the parties was awarded to her; and the defendant was ordered to pay to the plaintiff for the support of such children the 'sum of $100 per month payable $50 on the 10th day of each month and $50 on the 25th day of each month until said minor child, Linda Ann Van Divort attains the age of 18 years.'

Thereafter, the defendant moved from the state of Ohio to the state of Connecticut where he continued to reside and was residing on August 31, 1954.

On the latter date, the plaintiff filed a motion to modify the former order for support of the minor children and to increase such allowance, on the grounds that the amount ordered and paid was then insufficient, and that the defendant's income had increased since the last support order was made. Upon the filing of such motion, a copy thereof, together with notice of the time when it would be heard, was mailed to the defendant's place of residence in Conventry, Connecticut, by counsel for plaintiff, and was duly received by the defendant.

On September 17, 1954, the defendant, appearing solely for that purpose, moved to quash the alleged service of notice of the motion upon him, on the following grounds: (1) That there is no authority at law for the issuing of such service of notice; (2) that the defendant is not a resident of the state of Ohio; (3) that the court has no jurisdiction of the person of the defendant; and (4) that such pretended and alleged service of notice is not authorized by the statutes of Ohio and is, therefore, contrary to law.

The trial court found that the service of notice of the above-described motion complied with Rule XIX of the Court of Common Pleas of Franklin County, adopted May 15, 1943. Upon the evidence adduced, the court modified the order for support of minor children, as follows:

'The defendant shall pay through the cashier's office of the Court of Domestic Relations of Franklin County, Ohio, the sum of $150 each month hereafter for the support and maintenance of his two minor children, $75 of which shall be paid on the 10th of each month and $75 on the 25th of each month: this order to be effective as of August 31, 1954, and continue until the daughter, Linda Ann, becomes 18 years of age,' when 'the payments shall be reduced to $90 per month, and shall continue until the son, Michael, becomes 18 years of age.'

An appeal was taken by the defendant to the Court of Appeals for Franklin County, which court on May 12, 1955, affirmed the judgment of the trial court in overruling the defendant's motion to quash service upon him, sustained the trial court's finding that it had jurisdiction of the person of the defendant and affirmed the personal judgment against him. However, the Court of Appeals, finding that its judgment is in conflict with a judgment rendered by another Court of Appeals, in the case of Vida v. Vida, 86 Ohio App. 139, 90 N.E.2d 441, on the same question, certified the record of the instant case to this court for review and final determination.

Horace S. Kerr and D. E. Friedlander, Columbus, for appellee.

Hamilton & Kramer, Columbus, for appellant.

HART, Judge.

The question presented is: Does a court of this state having jurisdiction of the person of a defendant in an original divorce action, wherein the support of minor children is involved,...