Summary
explaining that a court that obtains jurisdiction over child custody by way of certification retains continuing and exclusive jurisdiction
Summary of this case from In re A.G.Opinion
No. 79-1424
Decided July 2, 1980.
Courts — Custody proceedings — Continuing jurisdiction — Sister court may not modify decree.
APPEAL from the Court of Appeals for Defiance County.
On November 2, 1977, appellee, Sandra K. Loetz, instituted an action in the Court of Common Pleas of Defiance County for a divorce from appellant, Rodney J. Loetz. On November 9, 1977, appellant filed an answer, cross-complaint, and petition for conciliation. Both parties filed requests to obtain custody of a minor child, Julia K. Snyder, who is the natural daughter of appellee by a prior marriage and appellant's stepdaughter.
The instant divorce action was referred to a referee of the Court of Common Pleas, who recommended that appellant's request for a divorce be granted.
With respect to Julia Snyder, the referee concluded that it was in her best interests to award custody to appellant. However, upon acknowledging that Julia's natural father had not been "served notice of***[these] proceedings," the referee recommended that the cause be transferred to the Court of Common Pleas of Williams County for further consideration consistent with "the rights of***[the child's] natural father." (It is uncontroverted that this court had previously granted the divorce between appellee and Julia's natural father, and had awarded custody of Julia to appellee.)
Objections to the report and recommendation were filed by appellee, but the judge awarded appellant a divorce and granted him temporary custody of Julia until the cause could be transferred to Williams County for further custody proceedings.
Sandra Loetz appealed to the Court of Appeals and that court reversed as to custody of Julia, finding that the lower court's decree was void and of no effect since Julia's natural father was not a party to the instant divorce action.
The cause is now before this court upon the allowance of a motion to certify the record.
Messrs. Buchanan Buchanan and Mr. J. Vincent Buchanan, for appellee.
Rodney M. Arthur Co., L.P.A., Mr. Rodney M. Arthur and Mr. Mark A. Robinson, for appellant.
The court in which a decree of divorce is originally rendered retains continuing jurisdiction over matters relating to the custody, care, and support of the minor children of the parties. Hoffman v. Hoffman (1864), 15 Ohio St. 427; Addams v. State, ex rel. Hubbell (1922), 104 Ohio St. 475, 135 N.E. 667; Corbett v. Corbett (1930), 123 Ohio St. 76, 174 N.E. 10; Van Divort v. Van Divort (1956), 165 Ohio St. 141, 134 N.E.2d 715. In Hoffman v. Hoffman, supra, this court found ineffectual an attempt by a probate court to modify the existing custody decree of a court of common pleas of this state. In paragraph one of the syllabus, this court held:
"Where a court of common pleas, on rendering a decree of divorce, further decrees the `custody, care and control' of the minor children of the marriage to one of the parties, a probate court, while such decree remains in force, can not, as between the parties to the decree, legally interfere with the custody so decreed, either by habeas corpus or letters of guardianship."
A similar result was obtained in Addams v. State, ex rel. Hubbell, supra, wherein custody of a minor child was awarded to her father by the Court of Insolvency of Cuyahoga County. Subsequently, the child's paternal grandfather secured an ex parte order from the Probate Court appointing him as the guardian of the child. The court, upon hearing, modified its prior order and awarded custody to the child's maternal grandmother. Thereafter, the grandfather obtained a writ of prohibition from the Court of Appeals barring the enforcement of the custody decree of the Court of Insolvency. In reversing the judgment of the Court of Appeals, this court acknowledged, at page 478, that "[o]ne of the duties of this court is to protect not only its own jurisdiction, but the jurisdiction of all other courts, whether defined by constitution, statute, or a long and well-settled line of adjudication." The court held, in paragraphs three, four and five of the syllabus, as follows:
"3. Any order of such court touching the guardianship of a minor child is subject to be modified from time to time, as in the judgment of the court the best interests of the child may require.
"4. During such continuing jurisdiction other courts, whether inferior or superior, having concurrent jurisdiction of the custody of minor children, are by long and well-settled practice of this state denied the exercise of such jurisdiction.
"5. During such continuing jurisdiction of the court of insolvency over a minor child, an order purporting to be made by any other court, appointing a third party as guardian of the person of the minor child, is null and void."
In this cause, it is uncontroverted that, prior to the order of the Court of Common Pleas of Defiance County which awarded temporary custody of Julia Snyder to appellant, the Court of Common Pleas of Williams County had ordered that custody of Julia be given to appellee. However justified the Court of Common Pleas in the instant cause may have been in modifying the custody decree issued by the Court of Common Pleas of Williams County, this latter court retained continuing jurisdiction over the minor child pursuant to the original divorce proceedings. Therefore, the Court of Common Pleas in the cause at bar lacked jurisdiction to modify the existing custody decree of its sister court. See R.C. 3109.06; Corbett v. Corbett, supra ( 123 Ohio St. 76); Van Divort v. Van Divort, supra ( 165 Ohio St. 141); R.C. 3109.23.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
There is agreement by all courts involved in the instant cause that the trial court did not have jurisdiction to order a change of permanent custody of appellee's daughter. In fact, however, the trial judge granted only temporary custody to appellant, the stepfather, and directed the ultimate custody disposition to be made by the Court of Common Pleas of Williams County. This was a most rational approach to the problem before that judge, which is not directly governed by the statutory scheme, since the stepfather was an undeniably fit parent. Yet such a temporary disposition is not a final appealable order under R.C. 2505.02. I would reverse the Court of Appeals and direct the dismissal of this appeal, allowing the stepfather to retain custody and thus leaving appellee to seek other remedies.
Since a stay was granted pending appeal of this cause, custody was retained by the stepfather. Appellee could attempt to obtain custody, either through a writ of habeas corpus or by an action brought in the Court of Common Pleas of Williams County. Under either approach the future of the child would be ultimately determined by a forum with jurisdiction to consider the predominant question, i.e., the best interests of the child.