Opinion
No. 34475
Decided April 18, 1956.
Divorce and alimony — Custody and support of minor children — Continuing jurisdiction — Modification of custody and support order — Application or motion required — An ancillary proceeding — New service of summons not necessary — Notice of application or motion — Court rule for service of — Notice by mail sufficient, when.
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 further 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 disccretion, 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.
CERTIFIED by the Court of Appeals for Franklin County.
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.
Mr. Horace S. Kerr and Mr. D.E. Friedlander, for appellee.
Messrs. Hamilton Kramer, for appellant.
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, retain such jurisdiction over such defendant after a divorce decree and order for the support of minor children are entered, so as to permit further orders for support to be made against such defendant, even though he is then a nonresident of the state of Ohio, where a copy of a motion, after term, seeking an order to increase child support, and a notice of the time of hearing of such motion are mailed to such nonresident defendant at his address in another state, which copy and notice are received by him within ample time?
This court has held that a court in which a decree of divorce is rendered has continuing jurisdiction over matters relating to the custody, care and support of minor children of the parties, and that such continuing jurisdiction is retained regardless of any express reservation in the original decree. In the case of Corbett v. Corbett, 123 Ohio St. 76, 174 N.E. 10, this court specifically held:
"A decree of divorce terminating the marriage contract of parents who have minor children, which decree provides for the custody, care and support of such minor or minors by the parents respectively during such minority or for a lesser period of time, named in the decree, continues the jurisdiction of the court for such period without any express reservation in the decree itself." See, also, Neil v. Neil, 38 Ohio St. 558; and Rogers v. Rogers, 51 Ohio St. 1, 36 N.E. 310.
This rule has almost universally been adopted by the courts. On this subject, in 2 Nelson on Divorce and Annulment (2 Ed.), 457 and 458, Section 17.22, it is said:
"An application to change or modify alimony or support money is generally regarded as incidental to, and a step in, the original suit * * *. It has been declared that the welfare of minor children is of so much concern to the public that the court probably can, if it sees fit, act on its own motion, whenever it comes to its attention in any manner that the children of divorced parents are in want, to require additional maintenance."
And, it was held in the case of Corbett v. Corbett, supra:
"The proper practice in securing a modification of such decree with respect to the custody, care or support of such minors, is by motion filed in the original divorce action by the party seeking such modification."
It is the function of such application or motion to invoke the further action of the court and to advise the court and the opposite party of the conditions relied upon as justifying a modification of the order for support. Under the continuing jurisdiction of the court in such an action, the filing of a motion for a modification of the decree for support is not the institution of a new or original proceeding but of one ancillary and incidental to the original action. No new service of summons on a party is necessary to give the court jurisdiction to make further orders as to minor-child support. The party remains subject to the jurisdiction of the court in that regard, without reference to the place of his residence or further steps to acquire jurisdiction of his person.
The general rule on this subject is stated in 17 American Jurisprudence, 520, Section 686, as follows:
"The absence of parents or children from the territorial jurisdiction of the court does not, according to the general view, affect the court's power to modify the provisions of its decree respecting the custody of children. This principle is upheld under statutes expressly authorizing the court to modify such a decree as well as in the absence of statute where the court is acting under its inherent powers. The theory of many cases is that a decree of divorce awarding the custody of the children of the divorced parents to a designated party is, so far as the custody of the children is concerned, one of provisional or interlocutory character, subject to modification or change as the welfare of the child may demand, and the proceedings to modify such a decree are, in a sense, ancillary to the suit for divorce in which jurisdiction of the parties has been properly acquired. In such cases, the jurisdiction so acquired will be regarded as furnishing the scintilla of jurisdiction necessary in the subsequent proceeding for the modification of the original decree." (Italics supplied.)
It remains to be determined what summons or notice must be given to the opposite party of a motion or application to the court to modify its former award for support. At this point, it is to be observed that there is no provision in the statutory law of this state for any method of notice in such cases. The method and sufficiency of such notice are therefore left to the sound discretion of the court.
Effective March 15, 1945, the judges of the Court of Common Pleas of Franklin County, wherein the instant case originated, adopted a rule of court (No. XIX) 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, and providing that such writs or process shall be enclosed in a sealed envelope bearing first-class postage; that in the upper left-hand corner of such envelope shall be plainly printed the following words, "If not delivered in five days, return to sheriff, Franklin County, Columbus, Ohio"; and that, if such envelope is returned by the postal authorities as undelivered, it shall be deposited with and filed by the clerk of court, and the return of such envelope so filed shall be deemed a return of "not found."
As a part of the judgment of the trial court in the instant case, overruling the plaintiff's motion to quash service of notice of the motion on him, the court found "that the service by mail in this cause complied with Rule XIX of the Court of Common Pleas of Franklin County, Ohio, passed May 15, 1943."
This court is of the opinion that the service of notice of motion upon the defendant by mail under court order, which notice was in fact received by him, was sufficient to give the court further continuing jurisdiction to consider such motion and to increase the award for the payment of child support.
The Court of Appeals was justified in affirming such order, and the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.