Opinion
No. 40231
Decided February 1, 1967.
Divorce and alimony — Support of children under 14 — Investigation — Section 3105.08, Revised Code — Statutory requirement not jurisdictional to making maintenance order.
The provision of Section 3105.08, Revised Code, that the trial court in a divorce proceeding "shall cause an investigation to be made as to the character, family relations, past conduct, earning ability, and financial worth of the parties to the action" where "there are children under 14 years of age involved," is not a jurisdictional prerequisite to the making of an order for the "maintenance of the children of the marriage" under Section 3105.21, Revised Code, and such order is not void when made without such prior investigation.
CERTIFIED by the Court of Appeals for Montgomery County.
On March 8, 1961, plaintiff husband, appellant herein, filed a petition for divorce in the Common Pleas Court of Montgomery County. Since the defendant wife, appellee herein, was a resident of England throughout the litigation, as were their minor children who were then under 14 years of age, service was effected by publication. A copy of the petition was duly mailed to defendant and received. In a letter which the trial court styled an answer, the defendant did not dispute the jurisdiction of the court, nor did she contest the granting of a divorce but rather requested only that the court render a support order for the maintenance of the children.
On June 16, 1961, the court granted the plaintiff a divorce but "further ordered that the plaintiff pay the sum of $60 per month to the defendant for the support of said minor children of the parties hereto until the further order of the court."
On September 20, 1965, the plaintiff filed a motion to vacate the support order "for the reason that such order is illegal and void, and the court [was] without jurisdiction to make such order in the circumstances."
Plaintiff contends that the failure of the trial court to make the investigation required by Section 3105.08, Revised Code, deprived the court of "jurisdiction" to enter the support order.
Section 3105.08, Revised Code, prior to amendment, read as follows:
"On the filing of a petition for divorce or for alimony, the Court of Common Pleas may, and in cases in which there are children under 14 years of age involved shall, cause an investigation to be made as to the character, family relations, past conduct, earning ability, and financial worth of the parties to the action. The report of such investigation shall be made available to either party or his counsel of record upon written request not less than five days before trial.
"The court, on its own motion, may cite either party to the action from any point in the state to appear in court and testify as a witness."
The trial court overruled the motion to vacate. The Court of Appeals affirmed, saying:
"The court finds further, that the word `shall' as used in Section 3105.08, R.C. is mandatory; that support of children under 14 years of age is included in the subject matter of said action, but that the requirement that the investigation shall be made is not jurisdictional, although failure to investigate constitutes error.
"* * *
"The court further finds that this judgment is in conflict with the judgment of the Courts [ sic] of Appeals for Summit County in Cobb v. Cobb, 112 Ohio App. 19, 174 N.E.2d 290, on the question of whether or not the failure to make the investigation required by Section 3105.08, R.C. renders the proceeding to which it relates void or voidable only, and this case is ordered to be certified to the Supreme Court for review."
Mr. Roy H. Horn, for appellant.
Does the failure of the trial court to make the investigation which Section 3105.08, Revised Code, requires to be made where there are children under 14 years render the support order void? Plaintiff contends that it does.
The Common Pleas Court clearly had jurisdiction of the subject matter of a divorce action under Section 3105.01, Revised Code. Plaintiff's residence requirements were met. Section 3105.03, Revised Code. Jurisdiction over the nonresident defendant was obtained pursuant to Section 3105.06, Revised Code. The defendant by her answer consented to the jurisdiction of the court. Section 3105.03 expressly states that the fact that the marriage and the cause of action arose outside Ohio does not impair the court's jurisdiction. Section 3105.07 indicates that a divorce action against a person who "is the subject of a foreign nation and a nonresident of the state" is well within the framework of the court's jurisdiction.
However, plaintiff argues that a divorce decree and a support order derive their validity from separate jurisdictional bases. But both principle and authority militate against that position. As a matter of principle, the state of Ohio in its paramount concern for the children of a marriage could never, as plaintiff claims, dissolve the marriage without providing for the children of that marriage. Ohio's divorce laws were never intended to be a means by which a spouse could insulate himself from his obligations to his children, for the state seeks to remedy social ills, not to cause them. Thus in a divorce action the court is required to make such support order "as is just." This is the import of Section 3105.21, Revised Code which, prior to amendment, read as follows:
"Upon satisfactory proof of any of the charges in the petition for divorce or for alimony, the Court of Common Pleas shall make such order for the disposition, care, and maintenance of the children of the marriage, as is just, and in accordance with Section 3109.04 of the Revised Code." (Emphasis added.)
The statute does not lay down separate jurisdictional steps as conditions for support orders. Rather, it requires the court in a divorce proceeding to make a support order. This indicates to us that divorce decrees and support orders do not rest on separate jurisdictional bases but are rather two means necessary to remedy one problem. Jurisdiction to render a divorce decree and jurisdiction to render a support order are one and inseparable.
When the court, acting within its jurisdiction, made the support order without causing a prior investigation to be made, it did not lose its power to act. That had already attached. And certainly an error of law, no matter how significant, does not destroy a court's power to act. The court having the jurisdiction and the power to enter the order of support, such order is not void merely because no investigation was made.
The Court of Appeals, after disposing of the question of jurisdiction in its journal entry, added that the "failure to investigate constitutes error." It is not necessary to decide the question raised by this statement inasmuch as the sole issue presented by the appellant is one of jurisdiction.
Since we hold that the lack of prior investigation does not render the support order void, the judgment of the Court of Appeals is affirmed, and the judgment in Cobb v. Cobb, 112 Ohio App. 19, is disapproved.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL and SCHNEIDER, JJ., concur.
BROWN, J., concurs in the syllabus and judgment.