
    Schlenker v. Ferdon et al.
    
      Divorce — Children not proper parties — Descent and distribution — Court cannot control succession of property after parent’s death, when — Finding that no issue born of marriage not res judicata — Evidence to sustain right to succession as legitimate child — Burden of proof to establish . illegitimacy — Clear and convincing evidence necessary.
    
    1. Jurisdiction in divorce cases being limited to issues between plaintiff and defendant, children are not proper parties.
    2. Judgment or court finding in divorce case cannot direct course of succession to title to property, as affecting rights of children not parties. -■ - • .• r i
    3. Finding of court in divorce action that there was no issue born of the marriage held not res judicata, or determinative of rights of succession of alleged child of parties.
    4. Evidence held to show claimant of right to succession was legitimate child of parties to divorce action.
    6. Burden of proof is on the one alleging illegitimacy of child.
    6. Clear and convincing proof is necessary to establish illegitimacy.
    (Decided March 29, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Walter A. Ryan and Mr. Wm. C. Lambert, for plaintiff in error.
    
      Mr. Simeon M. Johnson, for defendant in error Ferdon.
   Cushing, J.

The question presented by the record is whether Nellie Schlenker or Stanley George Ferdon is entitled to the estate left by George W. Ferdon, deceased. The judgment of the court of common pleas was in favor of the latter.

Albert Daiker, administrator de bonis non of the estate of George W. Ferdon, brought an action in the court of common pleas against Nellie Schlenker and Stanley George Ferdon, praying for instructions as to which of these parties was entitled to the property in his possession as such administrator.

By way of answer and cross-petition, Stanley George Ferdon claimed that Nellie Schlenker “is not the sole heir at law of said George W. Ferdon, deceased, but that the sole heir at law of George W. Ferdon, deceased, is this defendant, Stanley George Ferdon,” and he asked that the court order a distribution to this defendant of the bonds and money in the hands of said administrator, and for all other relief.

Nellie Schlenker says that she is a sister of George W. Ferdon, who died January 1, 1923; that she is his sole heir at law. She denies that Stanley George Ferdon is the son of George W. Ferdon, deceased, and prays that she be declared the sole heir at law of George "W. Ferdon, and for all other relief. By way of cross-petition, she pleaded that on October 24, 1905, George W. Fer-don, in an action pending in the court of common pleas of Hamilton county, Ohio, being case No. 131428, secured a divorce from Martha Ferdon, on the ground that Martha Ferdon was guilty of gross neglect, extreme cruelty, and adultery. The decree in that case, as pleaded, recites:

“And the court further finds that the parties thereto were married as set forth in the petition. and that no issue was born the fruit of said union. ’ ’

Martha Ferdon did not file an answer in that case, and the cause was uncontested.

The record discloses that there were two divorce cases between these parties. On September 28, 1901, Martha Ferdon filed an action against George W. Ferdon for divorce. She was given a decree on January 9, 1902. On March 10, 1903, the parties were married a second time. They lived together from that time until July 4, 1903, when they separated. Stanley George Ferdon was born December 12, 1903.

On May 4, 1905, George W. Ferdon brought an action in the court of common pleas against Martha Ferdon for divorce, No. 131428, alleging that they were married March 10, 1903, separated July 4, 1903, and that she had been guilty of gross neglect of duty, extreme cruelty, and adultery. He was granted a divorce on all grounds.

On March 21, 1910, Stanley George Ferdon, through his mother as next friend, filed a petition in case No. 131428, asking for a modification of the judgment of October 24, 1905. On April 11, 1910, a motion was filed to strike the petition from the files, on the ground that Stanley George Ferdon was never a party to the original proceeding and no proceedings were had against him. On April 23, 1910, the court granted that motion.

The question here is whether or not Stanley George Ferdon is bound by the finding of the court of common pleas, in 1905, that there was no issue born the fruit of the marriage.

The jurisdiction of the court of common pleas in divorce cases is defined by statute, and is limited to the question at issue as between the plaintiff and the defendant. Children are not proper parties, nor can they be made parties in such an action. True, the court has continuing jurisdiction to provide for the support, maintenance, care, custody, and control of the children during their minority. Any judgment or finding of a court in a divorce case, or in an action for divorce, cannot direct the course of succession to the title to property, real or personal, after the death of one of the parents. Such a judgment is ultra vires and void, and may be attacked in a collateral proceeding. Thiessen v. Moore, 105 Ohio St., 401, 137 N. E., 906.

The court in case No. 131428, supra, did not have jurisdiction to pass on any question affecting the status or rights of Stanley George Ferdon. He was not a party to the action, and his right of succession to the estate of George W. Ferdon was not determined at that time.

The remaining question is as to whether or not Stanley George Ferdon was the son of George W. Ferdon. As stated, the parties were married March 10, 1903. The child was born December 12, 1903. Ferdon and his wife lived together constantly, so far as the record discloses, from the date of their marriage until July 4, 1903. The record is undisputed that the period of gestation runs from 270 to 280 days. The child was born 277 days after the date of the marriage.

The rule is that, when the legitimacy of a child is questioned, the burden of proof is upon the one alleging illegitimacy, in this case upon Nellie Schlenker, who alleges that Stanley George Ferdon was not the son of George W. Ferdon, deceased, and illegitimacy must be established by clear and convincing proof. The plaintiff in error did not offer any evidence on that question, so the undisputed evidence is to the effect that the parties cohabited, the child was born within the limit of the period of gestation, and is the son of George W. Ferdon.

Plaintiff in error relies solely on the point that the judgment rendered in the divorce case in 1905 is res adjudicate/ or an estoppel of this action. The rule of res adjudicata is so well established that it will not be here restated. It is sufficient to say that Stanley George Ferdon was not a party to the action in 1905, and that the refusal to let him come into that case in 1910 was expressly stated to be that he had not been made a party, and that no proceedings were had against him.

The question of Stanley George Ferdon’s right to inherit from his father was not made in the divorce case, and that judgment does not estop him from now claiming the property left by George W. Ferdon.

The question of fact in the trial court having been established without any evidence offered to the contrary, our conclusion is that the judgment of the court of common pleas should be affirmed.

Judgment affirmed.

Buchwalter, P. J., and Hamilton, J., concur.  