Luebkeman v. Luebkeman

*18 OPINION By HORNBECK, J: This is an appeal from an order of the Common Pleas Court, Montgomery County, Division of Domestic Relations, awarding the custody of the minor child of the parties, William Richard Luebkeman, to William K. Luebkeman and Bertha C. Luebkeman, the paternal grand-parents of the child. The custodial order was a part of the decree of the Court granting a divorce to the plaintiff from the defendant, and awarding another minor child of the parties, Marlene Evelyn, to the plaintiff, the mother of the child. The decree makes no specific finding that either party to the divorce action is an improper person to have the care, custody and control of said minor, William Richard Luebkeman. The errors assigned are that the custodial order is contrary to law, not sustained by sufficient evidence and is against the weight of the evidence. At the outset, it should be said that this Court is always hesitant to interfere with the judgment of a trial judge as to the custody of young children because he has a better advantage than we in that he has personal touch with the parties. So in this case, if upon this record we can find any authority of law upon which the order of the trial judge, who has had a wide and varied experience, may be supported we would be reluctant indeed to vacate the decree which he has made. The jurisdiction, judgments and orders of the trial court in divorce, alimony and custodial proceedings are controlled by statute. If the Court is invested with chancery power it is such only as is declared by statute. Varsey vs. Varsey, 36 O. C. C., 385. No claim is made by the appellee that the Court had any authority, as to the order here under consideration, over and beyond that to be found in the General Code. It thus becomes necessary to examine the controlling statutes. Under Title VI, Domestic, Relations, are three chapters, (1) Husband and wife; (2) Apprentices; and (3) Infants, under the third chapter is found §§8032 and 8033 G.C. Sec. 8032 GC provides in part that, “When husband and wife f * are divorced and the question as to the care, custody and control of the offspring of their marriage is brought before a court of competent jurisdiction in this state, they shall stand upon an equality as to *19 the care, custody and control of such offspring, so far as it relates to their being either father or mother thereof.” The next section, §8033 G.C. is controlling of the question presented on this appeal and provides in part, “Upon hearing the testimony of either or both parents, corroborated by other proof, the Court shall decide which one of them shall have the care, custody and control of such offspring, taking into account that which would be for their best interest, * *. If upon such hearing it should be proved that both parents are improper persons to have the care, custody and control of their children, in its discretion, the Court may either designate some reputable and discreet person to take charge thereof, * *.” (Emphasis ours) The meaning of this section is plain and in conjunction with §8032 GC it appears that, primarily, the parties are on an equal footing with respect to the right to the custody of their minor children. Within this limitation the Court will take into account that which would be for the best interest of the children. Unless and until the Court finds that both parents are unfit persons to have the custody of their children the Court may not award their custody to any other person, even though of opinion that the best interest of the children would be subserved by so doing. See 27 C.J.S. 1162, 1168. It is probable that, as a prerequisite to an order awarding a child to one other than its parents, the journal entry should recite the finding of the unfitness of the parents to have the custody of their child. However, if we indulge the presumption that the order of the trial judge is valid and is predicated upon proper and necessary findings, then we would be required to say that the record does not support a finding of the unfitness of the parties to have the custody of their children. The fact that one child was awarded to the mother tends strongly to overcome any conclusion that she is an unfit person, nor does the record justify such determination. Counsel for appellant insists that the finding of the Court was tantamount to a determination of the unfitness of the father. We do not accede to this conclusion. *20 Appellee cities two cases, In re Taylor, 19 O. N. P. (N.S.) 438, and Graviess v Graviess, 7 O.C.C. (N.S.) 135, 18 O. C. D. 26, to support the proposition that the welfare of the children is the controlling factor. These cases support that contention only to the extent that such determination be made as between the parents and does not extend the right to apply that'principle to. support an award of the custody to a third party. We know of no cases wherein an award of custody of children to one other than a parent has been supported unless predicated upon the essential finding of the unfitness of the parents to have the care, custody and control of their children as provided by §8033 GC. The judgment will be reversed and cause remanded. HORNBECK, GEIGER and NICHOLS, JJ., concur.