Opinion
No. 37971
Decided April 24, 1963.
Appeal — Parties appellant — Party in contempt of lower courts can not prosecute appeal.
APPEAL from the Court of Appeals for Hamilton County.
A Florida court, having jurisdiction of the parties and subject matter, awarded to the appellees herein, Raymond S. and Mary E. Rose, the custody of a child, Melinda C. Morrell, with certain rights of visitation with the child's father, George P. Morrell, an appellant herein. The Florida court later adjudged such appellant in contempt of court for refusing to return the child to the appellees at the end of a visitation period.
The instant action in habeas corpus was brought by the appellees in the Common Pleas Court of Hamilton County against the appellants, George P. Morrell and his wife, Martha N., to enforce the custody order of the Florida court. The Ohio court granted the writ, ordering the child to be brought into court.
The appellants and the child were all present at the commencement of the hearing on October 3, 1962. At the hearing on October 4, the court was advised that George P. Morrell had taken the child beyond the jurisdiction of the court. Both he and the child were absent from the hearing on that day and from the subsequent hearings of the court, and their whereabouts were unknown. Martha N. Morrell also was absent from the hearing on October 4.
The court ordered that the appellees have custody and control of the child and that she be delivered to them. The court adjudged George P. Morrell guilty of contempt of court for unlawfully detaining the child and absenting himself from the court in violation of the subpoena, and adjudged Martha N. Morrell guilty of contempt of court for willfully absenting herself from the proceeding on October 4.
The Court of Appeals affirmed the judgment of the trial court.
An appeal as of right by the Morrells brings the cause to this court for review. The case has been submitted on a motion to dismiss the appeal.
Messrs. Paxton Seasongood, Mr. Starbuck Smith, Jr., and Mr. Robert W. Crawford, for appellees.
Messrs. Aronoff, Rosen Lerner, for appellants.
George P. Morrell's contumacious conduct in secreting both the child and himself from the court was contemptuous of the court and continues to be so, he not having purged himself of such contempt. This contempt affects the due course of procedure in the case by preventing the court from enforcing its decree.
A party in contempt of court is not entitled to prosecute or defend an action when the nature of his contempt is such as to hinder and embarrass the due course of procedure in the cause.
Appellants are not entitled to prosecute their appeal in this court. They cannot, with right or reason, ask the aid of this court while they stand in an attitude of contempt to the legal orders and processes of the courts which they seek to avoid by this appeal. Knoob v. Knoob, 192 Cal. 95; Lindsay v. Lindsay, 255 Ill. 442; Pike v. Pike, 24 Wn.2d 735; Henderson v. Henderson, 329 Mass. 257; Ellis v. Doherty, 334 Mass. 466.
The motion of the appellees to dismiss the appeal is sustained, and the appeal is dismissed.
Appeal dismissed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.