Summary
In Miller v. Miller (1951), 154 Ohio St. 530, 43 O.O. 496, 97 N.E.2d 213, we held that "[i]n a divorce action, where a child of the parties attains his majority, authority of the court over such child comes to an end, and the court is without power to provide for the support of or aid to such child or to continue a provision for his support.
Summary of this case from Carnes v. KempOpinion
No. 32098
Decided February 14, 1951.
Divorce and alimony — Power of Common Pleas Court limited — Only express statutory power and power necessary to make decree effective — Support order for adult child not authorized, when — Jurisdiction of subject matter not conferred by agreement of parties — Divorce, alimony and support of minor children awarded — No authority to require insurance continued beyond minority of children-beneficiaries.
1. In an action for divorce, alimony and support of minor children, the Court of Common Pleas does not possess general equity powers but can exercise only such power as the statutes expressly give and such as is necessary to make its orders and decrees effective. ( Marleau v. Marleau, 95 Ohio St. 162, approved and followed.)
2. In a divorce action, where a child of the parties attains his majority, authority of the court over such child comes to an end, and the court is without power to provide for the support of or aid to such child or to continue a provision for his support. ( Thiessen v. Moore, 105 Ohio St. 401, approved and followed.)
3. The parties to an action cannot by agreement clothe a court with jurisdiction of subject matter which it does not have.
4. Where in an action for divorce, alimony and support of minor children, a court enters a decree awarding the wife a divorce and the sum of $350 per month for alimony and support of the minor children, the court is without authority, in the absence of contract, to order the husband to keep in force beyond the minority of such children insurance policies on his life with the children as beneficiaries.
APPEAL from the Court of Appeals for Henry county.
On January 27, 1933, Otto Miller, Jr., hereinafter designated plaintiff, filed in the Court of Common Pleas of Henry County an amended petition for divorce against Irene Miller, hereinafter designated defendant.
Plaintiff alleged in his amended petition that he and defendant were lawfully married on September 12, 1923, when he, a Harvard student, was 21 years of age and defendant, a dancer in a Broadway revue, was 30 years of age.
Three children, who at the time of the filing of the amended petition were a girl eight years old, a boy six years old and a girl five years old, were the issue of the marriage.
The amended petition was long and filled with sensational and sizzling charges against defendant who, on February 23, 1934, filed an answer and cross-petition for divorce, reasonable temporary and permanent alimony, reasonable attorney fees, custody of the minor children, an order for their support and maintenance, an injunction against the transfer by plaintiff of any of his assets or expectations by will or otherwise, and for such other relief as defendant might be entitled to receive.
Defendant's answer and cross-petition was likewise filled with sensational and sizzling charges against plaintiff.
After a bitterly contested trial the court awarded a divorce to defendant upon the ground of gross neglect of duty.
During the progress of the litigation plaintiff's grandmother died and in her will established a trust by which plaintiff became the recipient of an annuity of $15,000 a year during his lifetime. The court directed the defendant trustees to pay from this annuity the attorney fees and the sum of $350 per month to the defendant for her support and the support of the minor children.
The monthly allowance of $350 is still being paid.
It appears that after his grandmother died plaintiff took out life insurance policies on his life in the sum of $75,000, naming his three children as beneficiaries.
In the decree of the court, after provisions that defendant "be and she is hereby awarded alimony for her support and the support of the minor children aforesaid in the sum of three hundred and fifty dollars ($350) per month, beginning as of June 1st, 1934, until the further order of the court" and after provisions as to attorney fees, it is stated:
"The plaintiff has already applied for and received life insurance policies Nos. 1426559, 1426560, 1426561, issued by the Sun Life Assurance Company upon the plaintiff's life in the sum of seventy-five thousand dollars ($75,000) in favor of the minor children aforesaid in equal shares, and it is hereby ordered, adjudged and decreed that the plaintiff keep said policies of insurance in full force and effect during his lifetime by promptly paying the premiums thereon and by doing all other necessary acts for the purpose aforesaid; * * * and said plaintiff is hereby permanently enjoined and restrained from changing the beneficiaries aforesaid of said insurance policies, except that he may and he hereby is ordered, if he has not already done so, to make provision with said Sun Life Assurance Company that, in the event one or two of said minor children predecease the plaintiff, then the entire proceeds of said policies shall inure to the benefit of the survivor or survivors of said three minor children in equal shares, unless hereafter modified by the future order of this court."
Both the plaintiff and the defendant excepted to the decree of the court but neither appealed therefrom.
The decree above referred to was entered July 5, 1934, and on October 24, 1935, a decree was entered which changed the former decree with reference to the insurance policies and ordered that plaintiff obtain three separate policies upon his life, payable in equal amounts to his three children, and that the trustees pay the initial premiums upon the same and continue to pay the premiums during plaintiff's lifetime. Otherwise there was no change in the original decree.
On March 17, 1949, plaintiff filed an amended motion for an order modifying the order of the court of July 5, 1934, and the further order of the court of October 24, 1935, in which motion he represented that the children of himself and defendant were then more than 21 years of age; that he, plaintiff, had remarried and was the father of five minor children of the ages of 13, 11, 9, 8 and 7 years, respectively, with whose maintenance, as well as the maintenance and support of his second wife, he was then legally charged; and that the court had no jurisdiction or power to appropriate money belonging to plaintiff for the maintenance of the children of plaintiff and defendant after such children reached the age of majority.
In the amended motion plaintiff prayed that the order of the court be modified by releasing him from all obligations of paying the premiums on the insurance policies, that the trustees in charge of his annuity be directed to refrain from further payment of the premiums accruing on the policies, and that plaintiff be permitted to cancel the policies and receive the cash surrender value thereof.
After a hearing, during which it was conceded that the children (intervening defendants) of plaintiff and defendant were of age, the court overruled plaintiff's amended motion.
Upon appeal the Court of Appeals reversed the judgment of the Court of Common Pleas, with one judge dissenting, and held that the provisions of the journal entries of July 5, 1934, and October 25, 1935, with reference to the insurance policies are void; that the defendant and her children have no interest in the policies; and that plaintiff has the right to cancel the policies and receive the cash surrender value thereon, to change the beneficiaries therein or to convert the policies into other contracts of insurance compatible with the provisions of the present policies. The court permanently enjoined the trustees from making any further payment of premiums on the policies; ordered the trustees to pay in the future to plaintiff the funds formerly required to pay the premiums, vacated the injunction theretofore made against plaintiff enjoining him from changing the beneficiaries of the policies; and ordered the delivery and surrender of the policies to plaintiff.
The case is before this court upon the allowance of a motion to certify the record.
Mr. David Meekison, Mr. George A. Meekison and Mr. Otto W. Hess, for appellee Otto Miller, Jr.
Messrs. Corrigan, McMahon Corrigan, for appellants.
Messrs. Squire, Sanders Dempsey, for appellee trustees.
The main question before this court is whether the Court of Common Pleas had the power or authority to make the order it did with reference to the insurance policies involved in the present case. It must be conceded that if the court had jurisdiction to make the order in question plaintiff is bound by it, no appeal having been prosecuted therefrom.
In divorce and alimony matters, the Court of Common Pleas does not possess general equity powers. Its jurisdiction in such matters is fixed by Sections 11979 to 12003, inclusive, General Code.
Section 11991, fixing the authority of the court with reference to alimony for a wife who has secured a divorce for the aggression of her husband, reads:
"Such alimony may be allowed in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments, as the court deems equitable."
With reference to the children of divorced parents, Section 11987 provides:
"* * * The court shall make such order for the disposition, care and maintenance of the children, if any, as is just."
In Marleau v. Marleau, 95 Ohio St. 162, 115 N.E. 1009, the syllabus reads:
"A proceeding for alimony does not invoke the equity powers of the court but is controlled by statute. The court is only authorized to exercise such power as the statute expressly gives, and such as is necessary to make its orders and decrees effective."
That syllabus was approved in West v. West, 100 Ohio St. 33, 124 N.E. 888, which case involved an order for the custody and support of children.
It logically follows that in a divorce case the Common Pleas Court has no jurisdiction with reference to an award of alimony or an order for the support of the children which is not given to it by statute, and no jurisdiction other than that granted by statute can be conferred upon such a court even with the consent of the parties to an action.
In the present case the court made its order with reference to both alimony and support of the children by awarding defendant $350 per month. If the court had decreed that plaintiff take out policies of insurance on his life with defendant as beneficiary we would have a different question. That was not done. Since a diligent search of the record fails to disclose a scintilla of evidence that the policies in the present case were taken out as the result of an agreement between plaintiff and defendant, or as a result of a contractual obligation with any one, or for any reason other than is natural where a father takes out insurance policies on his life for the benefit of his children, and since no move has been made to in any way modify the award for alimony and children's support heretofore made, the sole question before us is whether the court had any power or authority to order plaintiff to keep the insurance policies alive in favor of his children after the latter had attained their majority.
Section 7997, General Code, reads:
"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."
In the case of Thiessen v. Moore, 105 Ohio St. 401, 137 N.E. 906, the second paragraph of the syllabus reads:
"In a divorce, alimony, custody, support and maintenance proceeding the trial court is without power to make a decree with reference to the maintenance of minor children beyond the date when such children shall arrive at their majority, and a decree which purposes and attempts to direct the course of the succession to the title of real estate after the death of the parents is in that respect ultra vires and void and may be attacked in a collateral proceeding."
Judge Robinson in the opinion stated:
"The Legislature having imposed no obligation upon the parent beyond the majority of the children, the court was without power to create such obligation, was without power to do other than provide for the maintenance, care, education and custody of the children during minority, and was without power to make any order with reference to the children which was not for the purpose of maintenance, care, custody and control during minority." (Italics ours.)
The law of the Thiessen case has been followed by this court in later cases. Becker v. Industrial Commission, 137 Ohio St. 139, 142, 28 N.E.2d 361; In re Beilstein, 145 Ohio St. 397, 62 N.E.2d 205, 160 A.L.R., 1430.
In the Beilstein case, this court in a per curiam opinion quoted from the Becker case as follows:
"`Section 7997, General Code, provides, among other things, that: "The husband must support himself, his wife, and his minor children out of his property or by his labor." (Italics ours.) Applying the doctrine of expressio unius est exclusio alterius there is no legal liability on the part of a father to support and maintain an adult child. Thiessen v. Moore * * *. The precise limit of time during which a father is liable for his child's maintenance is fixed by law, and it cannot, in any case, be either enlarged or diminished except by legislative action.'"
In the Beilstein case attention was called to the fact that under the provisions of Sections 1815-9 and 1890-35, General Code, a father may be held liable for the support of an insane child under certain circumstances. Of course those sections have no application to the present case.
The Thiessen case is not only supported by logic and reason but is in accord with the great weight of authority.
In 162 A.L.R., 1085, it is stated:
"Largely in reliance upon the commonly expressed rule that when a child of the parties to a divorce or separation action attains his majority, authority of the court over such child comes to an end, it has been held or recognized, except in a few scattered cases, that a court in a divorce or separation suit is without power to provide for the support of, or aid to, an adult child of the parties, or to continue a provision for support after a child attains his majority." (Italics ours.)
In support of the above statement cases are cited from the federal courts and from the courts of 18 states.
It follows that the Common Pleas Court was without power or authority to make the decree with reference to the life insurance policies being extended beyond the time of the coming of age of the children of plaintiff and defendant upon any basis of furnishing support to such children beyond such time.
Is there any other basis upon which the decree can be sustained with reference to the insurance policies?
As we have said, there is not a scintilla of evidence that the policies were taken out by plaintiff as the result of any agreement or arrangement between plaintiff and defendant or between plaintiff and the court. There can be circumstances as the result of contract or equitable considerations whereby an insured might be prevented from changing the beneficiaries in an insurance policy or from cancelling the policy, but there are no such circumstances in the present case.
The court in a divorce case has the power only to award a wife alimony out of the husband's property or by decreeing to her a sum of money, such alimony to be either in bulk or in installments, or both.
The court did not award the defendant any interest in the insurance policies of the plaintiff. As we have seen, the court has no authority to award children support after they become of age, and the court's authority to provide in any way for the children ceases when they reach their majority.
The decree as to the insurance policies cannot be sustained as a gift because in the arrangement as to the policies there were no elements of a gift inter vivos.
The fact that the plaintiff did not appeal from that part of the order of the court which was void added no force to it.
Parties cannot by agreement clothe the court with jurisdiction of subject matter which it does not have. Parties cannot by agreement confer jurisdiction upon this court to hear an appeal in a tort action by appealing directly to this court and by-passing the Court of Appeals. Nor can parties by agreement clothe a justice of the peace with authority to grant a divorce.
Since the jurisdiction of the Court of Common Pleas in a divorce, alimony and support action is fixed and limited by statute, an order therein, which the statutes do not authorize, is void and cannot be vitalized by the failure to appeal therefrom.
It follows that the judgment of the Court of Appeals must be and is affirmed.
Judgment affirmed.
ZIMMERMAN, MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.