Abbas v. Abbas

Gene Donofrio, Presiding Judge. Plaintiff-appellant, Badrich Abbas, appeals a decision of the Mahoning County Court of Common Pleas, Domestic Relations Division. The domestic relations court found that it had had no authority to enter its May 28, 1985 judgment, which awarded child support for appellant’s son James Awad Abbas, age twenty-six at the time. The court concluded that the May 28, 1985 judgment was void and vacated it. Defendant-appellee, Sam Abbas, has failed to file a brief. Therefore, pursuant to App.R. 18(C), this court is authorized to accept appellant’s statement of the facts and issues as correct and reverse the trial court’s judgment if appellant’s brief reasonably appears to sustain that action. Appellant and appellee were married on July 15, 1957. During their marriage, appellant and appellee became the parents of James Awad Abbas, who, since birth, has been continuously blind, mentally impaired, and fully disabled. Because of his disabilities, James had been totally dependent upon his parents. At the time of the parties’ divorce, James was twenty-five years old. Immediately preceding the final divorce hearing, appellant, through counsel, filed a legal *515 memorandum concerning whether or not a noncustodial parent is responsible for supporting a mentally disabled child who is over the age of majority. On April 24, 1984, the trial court filed its judgment entry, granting the parties a divorce, awarding appellant custody of James and specifically finding that it had no authority to order child support for James despite his disabilities. No appeal was taken by either party from the trial court’s decision. Approximately eight months after the trial court filed its judgment entry of divorce, the Ohio Supreme Court decided Castle v. Castle (1984), 15 Ohio St.3d 279, 15 OBR 413, 473 N.E.2d 803, which concerned the question of whether parents have a continuing duty to support a mentally disabled or severely handicapped child beyond the age of majority. Following that decision, appellant filed a motion on February 25, 1985, asking, among other things, that the trial court order appellee to pay reasonable child support for James pursuant to Castle. A hearing was held on appellant’s motion on April 16, 1985, and the report of the referee was then filed on April 30, 1985, recommending that appellee pay child support for James in the amount of $175 per month. On May 28, 1985, the trial court adopted the report of the referee as the judgment of the court. In January 1996, appellant filed a motion for contempt against appellee through the Mahoning County Child Support Enforcement Agency as a result of appellee’s failure to pay the child support ordered for James. Appellee then filed a motion to vacate the child-support order entered May 28,1985, alleging that the trial court lacked the jurisdiction necessary to enter the order, thereby making the order void ab initio. Appellant responded to appellee’s motion by filing a njemorandum in opposition on August 8, 1996. Appellant claimed therein that James never reached the age of majority as that term is defined in R.C. 3109.01 because he has always been disabled. Appellant further argued that a trial court cannot simply divest itself of subject-matter jurisdiction by its own decree. Appellant maintained that the trial court recognized at the time of the divorce that it had jurisdiction over custody, and, therefore, it retained jurisdiction over James to enter subsequent orders. A hearing was held before the court magistrate on both parties’ motions. On September 26, 1996, the magistrate filed his decision, recommending that the order entered May 28, 1985, which granted child support for James, be vacated. Appellant filed objections to the decision of the magistrate, and following a hearing, the trial court filed its judgment entry on January 7, 1997, adopting the decision of the magistrate as its order and vacating the order entered May 28, 1985, regarding child support. On January 21, 1997, appellant timely appealed the domestic relations court’s January 7, 1997 decision. *516 Appellant’s sole assignment of error on appeal alleges: “Parents have a continuing legal duty to support their children who are unable to support themselves because of mental or physical disability which existed before attaining the age of majority and continues after the age of majority. This trial court erred in ruling that it did not have jurisdiction to enforce this legal duty.” Appellant states that the parties’ son, James Awad Abbas, has been totally disabled and unable to support himself as a result of physical and mental disabilities since birth and that that fact was recognized by the trial court at the time of the parties’ divorce. Appellant maintains that when the trial court awarded custody of James to her, it exercised jurisdiction over all parties concerned, thereby effectively retaining jurisdiction to enter subsequent orders regarding James. Appellant argues that although James was twenty-five years old at the time of the parties’ divorce, he had not .reached the age of majority, since emancipation never occurs for a child who has mental and physical disabilities prior to attaining the age of majority. In support of her contentions, appellant relies upon Castle, supra. Appellant states that according to Castle and the common law of Ohio as created by Castle, both parties had and still have a duty to support James even though he is an adult. Appellant concludes that the trial court in the case at bar had the authority and jurisdiction to award child support for a child with mental and physical disabilities, following the parties’ divorce. The Ohio Supreme Court in Castle, 15 Ohio St.3d 279, 15 OBR 413, 473 N.E.2d 803, held at paragraphs one and two of its syllabus, as follows: “1. The common-law duty imposed on parents to support their minor children may be found by a court of domestic relations having jurisdiction of the matter, to continue beyond the age of majority if the children are unable to support themselves because of mental or physical disabilities which existed before attaining the age of majority. “2. The domestic relations court retains jurisdiction over parties in a divorce, dissolution or separation proceeding to continue or to modify support payments for a mentally or physically disabled child, who was so disabled before he or she attained the statutory age of majority, as if the child were still an infant.” In its April 24,1984 judgment entry, the domestic relations court held: “20. IT IS THE FURTHER ORDER OF THIS COURT that Wife [appellant] is hereby granted custody of JAMES AWAD ABBAS who is 25 years old, blind and retarded. If [sic] the Court further finds that it has no authority to *517 order child support payments for the said JAMES AWARD [sic] ABBAS despite his impediments.” In In re Poling (1992), 64 Ohio St.3d 211, 215, 594 N.E.2d 589, 593, the Ohio Supreme Court stated: “[A] court which renders a custody decision in a divorce case has continuing jurisdiction to modify that decision.” In Loetz v. Loetz (1980), 63 Ohio St.2d 1, 2, 17 O.O.3d 1, 1-2, 406 N.E.2d 1093, 1093, the Ohio Supreme Court held: “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.” R.C. 3109.01 defines the age of majority as follows: “All persons of the age of eighteen years or more, who are under no legal disability, are capable of contracting and are of full age for all purposes.” (Emphasis added.) By granting custody of James, age twenty-five at the time, to appellant, the court was essentially asserting that James had not reached the age of majority. Therefore, the court maintained continuing jurisdiction over James, appellant, and appellee. Although the court did not initially order child-support payments for James, the court was later able to do so pursuant to Castle, because the court did retain jurisdiction over the parties. Consequently, it was error for the trial court to vacate its judgment of May 28, 1985, which ordered appellee to pay the sum of $175 per month plus two percent poundage for child support for James Awad Abbas. Appellant’s sole assignment of error is sustained. The January 7, 1997 judgment of the domestic relations court is hereby reversed, and the May 28,1985 judgment awarding child support for James Awad Abbas is hereby reinstated. Judgment reversed. Cox, J., concurs. Vukovich, J., dissents.