McFadden v. Kendall

Middleton, P. J. This case is in this court on appeal from the Court of Common Pleas of Auglaize county. There is no dispute as to the facts. The Court of Common Pleas, in June 1939, in a divorce action awarded custody of a minor child to the mother, Carmen Maize, now Carmen McFadden, the plaintiff in this action. Thereafter, in 1941, Mary E. Kendall, the maternal grandmother of the minor child, filed an action in the Juvenile Court of Auglaize county, charging that the minor was a dependent child. In that action the plaintiff herein filed the following designated waiver, to wit: “I, the undersigned, Carmen Boyd McFadden as *108 the mother of William Maize, a minor do by these presents hereby waive the issuing of service of notice on me in the above entitled cause and I do by these presents consent tó the application herein filed in this cause and confer upon the court jurisdiction for all purposes in the premises, and do consent to the immediate rendition of a decree in the matter of the custody, control and care of the said William Maize. “Carmen McFadden.” The Juvenile Court, on hearing, found the child to be dependent, within the meaning of the Code, and placed him in the custody of the grandmother, Mary E. Kendall, defendant herein and mother of plaintiff, Carmen McFadden. Thereafter, in April 1946, the mother filed a petition in habeas corpus in the Court of Common Pleas of Auglaize county to obtain custody of the minor. The court, on heáring, granted the writ, and it is from that order that appeal'is taken to this court. The case involves the question of jurisdiction between the Court of Common Pleas and the Juvenile Court. The jurisdiction of the Court of Common Pleas to award custody of children in divorce actions is contained in Section 11987, General Code, which provides as follows: ■ “The granting of a divorce and dissolution of the marriage in nowise .shall affect the legitimacy of children of the parties thereto. The court shall make such order for the disposition, care and maintenance of the children, if any, as is just. * * * ” The jurisdiction exercised by the Juvenile Court in awarding the custody of the child to the grandmother is found in Sections 1639-7 and 1639-16, 'General Code, enacted in 1937, which read, in part, as follows: *109 “See. 1639-7. The Juvenile Court, or Court of Common Pleas, Division of Domestic Relations of any county, separately and independently created, established and functioning as such by law, shall have and exercise the powers and jurisdiction conferred in this chapter. Except in counties in which there now is, or may hereafter be created, a separate and independent Juvenile Court or Court of Domestic Relations, there is hereby established and created within the Probate Court, a Juvenile Court, presided over by the probate judge, which shall be a court of record, and which shall exercise such powers and jurisdiction. * * *” “Sec. 1639-16. (a) The court shall have exclusive original jurisdiction under this chapter or under other provisions of the General Code: “1. Concerning any child who is (1) delinquent, (2) neglected, (3) dependent, or (4) crippled. “2. To determine the custody of any child not a ward of another court. * * *” (117 Ohio Laws, 524.) It is claimed by the plaintiff that the jurisdiction thus conferred on the Juvenile Court does not supersede the authority granted the Common Pleas Court under Section 11987, General Code, and that the Court of Common Pleas, having first acquired jurisdiction over the minor in the divorce action, retains jurisdiction to the exclusion of the exercise of jurisdiction by the Juvenile Court. The court has carefully considered the cases cited by counsel in their briefs. All these cases hold that the court first acquiring jurisdiction over the custody of a minor retains jurisdiction to the exclusion of all other courts. However, upon an examination of these eases we find none of them, with the exception of the case of Cleveland Protestant Orphan Asylum v. Soule, 5 Ohio App., 67, decided in 1915, involves more than *110 custody, and none of them, with this one exception, involved a minor charged with being a delinquent^ neglected, dependent, or crippled child under the Juvenile Court Code. Also, all the cases cited were decided prior to 1937 when the present Juvenile Court Code, in force at the time this case was decided, was enacted. Prior to the 1937 amendment of the Juvenile Court Code the Court of Common Pleas and the Juvenile Court had concurrent jurisdiction. This court does not approve the holding in the Soule case but the' reasoning of the court in that case could not apply in the present 'case in view of the change in the Juvenile Court Code since the case was decided. By the provisions of Section 1639-16, General Code, the Juvenile Court is granted exclusive original jurisdiction (1) concerning any child who is dependent,, and (2) to determine the custody of any child not a ward of another court. It is urged by the plaintiff that under this latter provision the Juvenile Court has jurisdiction to determine the custody of a child only if such child is not a ward of another court, and that the provision of this subsection is a limitation of the jurisdiction granted to the Juvenile Court over dependent, neglected, delinquent, or crippled children. With this view we can not agree. Such a construction is not supported by a study of the section. On the contrary, the only fair construction which can be given is that subsection 2 of Section 1639-16, General Code, is a grant of jurisdiction and not a limitation of jurisdiction. The jurisdiction over minors, acquired by the Common Pleas Court in a divorqe action, is a continuing jurisdiction and, as between the parties to a divorce action, no other court has authority to make any order affecting the custody of such minors. But *111 where a child is properly charged with being a delinquent, neglected, or dependent child, and is proven to be such, the state has a paramount right, in the interests of the child, to say who shall have the care,, custody and control of the child, and the Juvenile-Court, by the enactment of Section 1639-16, General1 Code, has been made the special and exclusive tribunal for determining such issue. Taking this view of 'the case, we find error in that the judgment of the Court of Common Pleas is contrary to law. The judgment is therefore reversed and the court, proceeding to render the judgment the Common Pleas . Court should have rendered, dismisses the petition of plaintiff and enters final judgment for defendant. Judgment for defendant, Jackson, J., concurs.