
    Mary A. Hoffman v. John Hoffman.
    1. Whore a court of common pleas, on rendering a decree of divorco, further decree the (i 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 corpxis or letters of guardianship.
    2. The jurisdiction of the court of common pleas over the subject of the custody of children in divorce cases is a continuing jurisdiction and may, on proper application, be invoked to modify orders originally made in respect to the custody of children whenever the character and circumstances oi the case or of the parties require it.
    Error to the district court of Lucas county.
    On October 10,1861, John Hoffman filed his petition in the probate court of Lucas county, and procured to be issued thereon, a writ of habeas corpus by the judge of that court, for the bodies of three minor children, Catherine E. Hoffman, aged twelve years (of imbecile mind), Agnes Hoffman, aged ten, and Jane Hoffman, aged eight years.
    The petition- alleged that the petitioner, John Hoffman, was the father, and that Mary Ann Hoffman, formerly his wife, but now divorced, was the mother of the children, and had them in her care and custody.
    The petition then charges that said Mary Ann has not the means to support the children, and that she is a person of temper and habits unsuitable to have the care and nurture of them; also that she is profane and vulgar, and keeps and allows the children to keep immoral company and associations. That on the other hand he has the means to support the children, and is, in all respects, a proper and suitable person to have their care and custody, and that he has offered to take the children, but she refuses to let him have them.
    The writ of habeas corpus was issued by the judge of probate to the sheriff of the county, commanding him to take and bring before the judge the bodies of the infants, and also to summon said Mary Ann to appear and show why she had taken and detained them.
    The sheriff made return, on the same day, that he had taken the children and held them in his custody, and that he had also summoned said Mary Ann as commanded.
    Upon the hearing of the case the petitioner filed a motion that he be appointed “ guardian of the said children for the reasons stated in the petition for habeas corpus on file.”
    At the same time said Mary Ann appeared by her attorneys and filed her return, verified by her oath, to the writ of habeas corpus, as follows :
    “ That the said Catherine E. Hoffman, Agnes Hoffman and Jane Hoffman were, upon the 28th day of March, a. d. 1859, delivered by the said John Hoffman into the care, custody, and control of this respondent, under and in obedience to the judgment and decree of the court of common pleas of said county, duly rendered and given at its February term, 1859, in a certain case then pending in said court, between said John Hoffman and this respondent, wherein the future care, custody, and control of said Catherine E., Agnes and Jane were in issue.
    “ That by the judgment and decree of said court, the custody, care and control of said infants were given to this respondent, and he, the said John Hoffman, was ordered to deliver them and each of them to this respondent without let or hindrance; and the said John Hoffman was, by said judgment and decree, enjoined and restrained from, in any manner, interfering with or annoying this respondent, or in any way interfering with the management, custody and control of said infants.
    “ That said judgment and decree have ever since, as to the matters referred’to, been in full force a.nd in nowise reversed, canceled, or annulled. That said case is of • record in the district court of said county, and said record is here referred to and made a part hereof.
    “ And respondent says that she has since the said 28th day of March, 1859, held and exercised the care, custody and control of said infants as required and authorized by said judgment and decree, and has not imprisoned or otherwise restrained of their liberty the said children or either of them.
    “That said judgment and decree were final and forever binding upon the parties thereto, and that in and by it were determined and settled the several matters and things sought to be investigated by the said John Hoffman in this proceeding; and that the same facts which did exist at the time of rendering said judgment and decree, and upon and in accordance with which the same were rendered and. given by said court, still exist, and no new fact or facts have since transpired or arisen which authorize or give any right or power to any one whomsoever, to in any way interfere with or call in question any of the rights or powers given to this respondent by said judgment and decree. And the respondent showeth the said judgment and decree in bar and estoppel of these proceedings, and asks that the same be discharged and dismissed and that she retain the care, custody and control of said infants as she of right may and ought.”
    This record, made a part of the return, shows the following proceedings:
    In June, 1858, said John Hoffman filed in the common pleas of Lucas county, his petition against his then wife, the said Mary Ann Hoffman, charging her with gross neglect of duty, refusing to take care of her children, refusing to take care of the petitioner, and asking for a divorce and for the custody of the children (there were four children living, one -older than those affected by these proceedings).
    
      To this petition, said Mary Ann made answer denying all the charges made against her. And she also filed her cross-petition against said John, in which she charges him with gross neglect of duty, extreme cruelty and gross personal violence, and with abandonment of her; that he took their children to parts unknown to her, and refused to let her have any intercourse with them, and also charges that he had lived in his family in a state of adultery with one Fanny Jane Medlin and had a child by her. Also alimony and the custody of the children were asked, and afterward, on leave of the court, the cross-petition was so amended as to include a prayer for divorce.
    To this petition said John filed an answer and also a cross-petition, denying the charges made against him, repeating the charges made in the original petition, and charging that she was profane and vulgar, and had in her house vicious and depraved persons, and was an improper associate for himself and his children, and asking a divorce and the custody of the children.
    Said Mary Ann filed a reply denying the allegations in the answer and cross-petition.
    The case was tried upon these pleadings at the February term, 1859, of Lucas common pleas, and judgment rendered. The entry upon the journal was as follows:
    “ This cause came on to be heard upon the petition, answer, cross-petition of the defendant, answer of the plaintiff and reply of the defendant, exhibits and testimony, and was argued by counsel (the defendant, Mary Ann Hoffman, on application for that purpose, was allowed to amend her cross-petition so as to embrace a prayer for a divorce) and the court upon consideration thereof, do find the equity of the case to be with the defendant, Mary Ann Hoffman, and that the plaintiff has failed to sustain the allegations of his petition, but that the defendant has sustained by proof the charge of adultery against the plaintiff as alleged in the cross-petition, and they do therefore' order, adjudge and decree that, the marriage contract between the plaintiff and defendant be and the same is hereby dissolved by reason of the aggressions of the petitioner as set forth in the cross-petition of the defendant, and both parties are absolved from the obligations of the marriage contract.
    “ And the court do further decree that the custody of the oldest child of said marriage, Elizabeth, be retained by the petitioner, and that the custody, care and control of the remaining children, Catherine E., Agnes and Jane, be given to the said Mary Ann Hoffman, and the said John is hereby ordered to produce and deliver said children to the defendant, or to her agent or attorney on demand, Avithout let or hindrance on the part of said plaintiff, or in default thereof that he be adjudged guilty of contempt of this court, and the sheriff in that event is ordered to execute the order and proceed to Avhere said children may be found and take the said three youngest children and deliver them to the said defendant.
    “And the court do order, by way of alimony, that said plaintiff pay into the hands of the clerk for the use of the defendant, the sum of two thousand dollars forthwith, which is hereby declared to have the full force and effect of a judgment in favor of the defendant and against the plaintiff, Ayith all the liens incident thereto; but it is further ordered that if the said plaintiff will, on or before Tuesday, the 29th instant, give bond to the petitioner, with good and sufficient surety, to the satisfaction of the clerk, to pay said petitioner the sum of five hundred dollars annually on the first day of May, 1860, 1861 and 1862, Avith interest, payable at the Bank of Toledo, then the said judgment shall be suspended to await the maturity of said several payments, but in case default shall occur, then the whole of said judgment shall be in full life and enforcible.
    “ And the said John is hereby enjoined and restrained from in any manner interfering Avith or annoying the defendant, or in any way interfering with the management, custody and control of samé children given by the decree into her charge, and the court do further order that the costs of this suit, including a counsel fee of two hundred dollars, be paid for the plaintiff and that execution issue for the collection of costs, alimony and allowance aforesaid.”
    From this decree John Hoffman appealed to the district court under the statute allowing appeals in such case, from the judgment for alimony, and at the spring term, I860, the district court again rendered a judgment for alimony against him. Neither the appeal nor the decree in the district court in any way interfered with the divorce or the decree of the common pleas as to the custody of the children.
    Upon filing this return the respondent moved the probate court to “ dismiss and discharge the proceedings, for reason that the judgment and decree set up in her return is final and conclusive and can not be impeached or inquired into in this case.” This motion was overruled and counsel for respondent excepted.
    The case came on for hearing on the 6th of November, 1861, and upon the introduction of testimony, counsel for respondent moved the court to reject certain parts of the evidence and among the rest all the testimony relating to the character, ability, or fitness of the respondent to have the care, custody and control of the children except such as shows that a material change had taken place since the rendition of the foregoing judgment.
    This motion was overruled and the testimony permitted to be heard, and counsel for the respondent again excepted
    The probate court thereupon proceeded to judgment and found “from testimony relating solely to facts transpiring since the decree of divorce in the return of the respondent set forth (no other testimony having been offered by the parties or admitted by the court), that the respondent Mary Ann Hoffman is an unsuitable person to have the care, custody and tuition of the said children now before the court by the writ of habeas corpus, and that the relator, John Hoffman, is a suitable person to have the care, custody and tuition of said children, ” and that the interest and welfare of the children required that the said John Hoffman should have the custody of them, and that therefore the children are unlawfully detained by the respondent. Thereupon the probate court appointed said John guardian of the children and ordered the sheriff to deliver them into his custody, there to remain. The costs of the proceeding were adjudged against the respondent and execution ordered against her. To all of which the respondent excepted.
    To reverse this finding and judgment of the probate court, the said Mary Ann Hoffman, on March 21, 1862, filed in the district court of Lucas county, her petition in error, claiming that the probate court erred:
    1. In overruling the motion made by the respondent in said proceedings to dismiss the same.
    2. In maintaining said proceedings.
    • 3. In overruling the motion of the respondent to exclude testimony.
    4. In appointing said John Hoffman guardian of said infants.
    5. In ordering them into his custody.
    6. In ordering the respondent to pay the costs.
    7. The court had no jurisdiction or authority to entertain any of said proceedings,' and erred in making any order therein.
    The district court affirmed the judgment and order of the probate court.
    To reverse this judgment of affirmance a petition in error is filed in this court averring that the district court erred:
    In affirming the judgment and proceedings of the probate court and in not reversing the same.
    
      Hill &¡ Pratt, and J. R. Osborn, for plaintiff in error.
    
      Kent Newton, for defendant in error.
   Brinkerhoee, C.J.

This case presents the question whether,, in case of a divorce of husband and wife by a decree of a court of common pleas of this state, and, by the same decree, the custody and control of the minor children of the marriage are-given to the mother, a change of such custody can afterward be-effected, either through the medium of such jurisdiction as accompanies the process of habeas corpus, or by the appointment of a guardian of the persons of the children by a probate judge ? — and whether, in case a change of the custody of the children should be required with a view to their benefit, it must not be effected by means of an order of the court rendering the original decree ?

By the fourth section of the act of March 11, 1853, “ con'Cerning divorce and alimony” (8 Curwen’s Stat. 2167), in ■force when the parties in this case were divorced, the court •decreeing a divorce is directed “to make such order for the ■disposition, care, and maintenance of the children of such marriage, if any there be, as shall be just and reasonable.”

That this statute conferred ample power on the court of ■common pleas permanently to fix the rights and duties of ■divorced parents in respect to the custody of their minor ■children, can not well be doubted; and the uniform practice ■of our courts is believed to have proceeded on this assumption.

Here, then, we have a case in which the question as to who was to have the permanent control and custody of these children is res adjudicata, and the right of the mother to such ■custody and control is fixed by a court of competent jurisdiction. But the question remains — what is the remedy, in case, subsequent to the decree, such changes either in the character or the circumstances of the parties occur, that the best interests of the children require a change of the custody as fixed by the decree? This question has never been authoritatively •decided in this state, and has occasionally given rise to embarrassment. On the one hand there would seem to be a ■manifest impropriety in permitting a court of inferior juris■diction, like the probate court, either by habeas corpus or by the appointment of a guardian, to interfere with the rights and domestic relations of parties already fixed by decree; and, on the other hand, our statutes nowhere expressly confer upon the court making the decree the authority subsequently to open up and modify its original orders in respect to the cusitody and control of children.

The statute of Illinois on this subject is substantially similar to our own. It provides that where a divorce shall be decreed, it shall and may be lawful for the court to make such order touching . . . the care, custody, and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable, and justbut it confers no express authority for further action by the court in the premises subsequent to the decree. Yet the supreme court of that state in Cowls v. Cowls, 3 Grilman, 435, approved in Miner v. Miner, 11 Illinois R. 43, hold that the children of divorced parties are in some sense the wards of the court, and that the court decreeing the divorce, may, in the exercise of chancery jurisdiction, at any time after decree of divorce, make such other and further orders in respect to the care and custody of the children as the circumstances may require.

So the statute of Indiana (1 Rev. Stat. 237) provides that “ the court in decreeing a divorce shall make provision for the guardianship, custody, and support and education of the minor children of such marriage,” but contains no provision for subsequent action of the court in the premises. Under this statute the supreme court of Indiana has held, in Williams v. Williams, 13 Indiana R. 523, that “ where, upon granting a divorce, the court, in its judgment, assigns the custody of the children to one of the parties, such disposition of the children will control, till the judgment making it is modified by the court, upon proper application; and can not be disregarded in a subsequent proceeding by habeas corpus to obtain possession of the children.”

In the cases referred to, the supreme courts of Illinois and Indiana seem to regard the jurisdiction conferred by the statutes on the courts granting divorces, in respect to the care and custody of the children of the parties, as being in its nature a continuing jurisdiction over the subject matter, and subject to be invoked at any time, on ■ proper application, whenever the circumstances of the case may require it. And with this view of the case we incline to accord. There is a marked distinction between an order in respect to the custody of children made by the court on decreeing a divorce of the parents, and one made by a court in habeas corpus. The latter covers only the right of custody, as existing at the time the order is made, and during such time thereafter as the character and circumstances of the parties and of the case remain without material change; and to that extent only is res adjudicata. While the former is of permanent obligation so long as it remains in force and unmodified.

The court making the original decree is the proper forum in which to seek a modification of its orders; and it would be vexatious and dangerous to permit probate courts, either by habeas corpus or letters of guardianship, to interfere with them, directly or indirectly, except, it may be, to enforce them. And cases of this kind, too, often present questions of a difficult, delicate, and important character, and a wise public policy would seem to require that they be dealt with by courts which, from their dignity, and the nature of their constitution and jurisdiction, afford the best presumption of ability properly to dispose of them.

As to the mode of proceeding to obtain a modification of orders made in cases of divorce in respect to the custody of children, we have no settled practice. The mode adopted and approved in Illinois was by petition setting forth the facts on the ground of which the modification or further order was prayed for; and such, it seems to me, would be a correct mode of proceeding.

The statute of April 12,. 1858, “concerning the relation of guardian and ward” (4 Curwen’s Stat. 8065), authorizes, in genera] terms, probate courts to appoint guardians, in proper cases, as well of the persons as of the property of infants; but the jurisdiction there conferred does not purport to be exclusive, and we can see nothing in that act to indicate that the legislature intended to repeal or supersede the jurisdiction conferred by the act concerning divorce and alimony upon the court of common pleas; or that it intended to authorize pro-Sate courts to disregard or override tbe decrees of a court of superior general jurisdiction remaining in full force.

Tbe judgment of tbe district court, therefore, and tbe orders and rulings of tbe probate court, are reversed, and the petition of John Hoffman in tbe probate court is dismissed, with costs.

Scott, Day, White, and Welch, JJ., concurred.  