
    Sonnenberg v. The State of Ohio.
    (Decided July 1, 1931.)
    
      Mr. Peter Albiets, for plaintiff in error.
    
      Mr. John H. Cooper, for defendant in error.
   Hornbeck, J.

Donna Jean Sonnenberg, plaintiff in error, is a minor of tender years, daughter of Walter and Leona Crager Sonnenberg.

On the 1st of February, 1931, an affidavit was filed by a probation officer in the juvenile branch, court of common pleas, division of domestic relations. The affidavit charged that Donna Jean Sonnenberg was about the age of five years; that she was a dependent child in that the parents, Walter and Leona Crager Sonnenberg, were divorced. The judgment entry of the trial court is as follows: “This-day this cause came on for hearing, and the Court being fully advised in the premises, and for good cause shown, the custody of said child, Donna Jean Sonnenberg, is hereby given to the father, Walter Sonnenberg, G-roveport, Ohio.”

From this judgment error is prosecuted.

The petition sets up seven claims of error which will be given sufficient consideration in the general discussion of the legal questions presented.

The record in this case consists of little testimony. Many of the facts presented and conceded in oral argument do not appear in the bill of exceptions. The question presented on the pleadings and journal entries together with the bill of exceptions, is whether or not the judgment is contrary to law or against the weight of the evidence.

It appears that the parents of the plaintiff in error were divorced; that at the time of the decree the custody of the plaintiff in error, Donna Jean Sonnenberg, was placed in the paternal grandmother part of the time and in the maternal grandmother the remaining portion of the time. Thereafter the custody of the child was awarded to the maternal grandmother, Mrs Katherine Linthwaite, with whom the child resided at the time of filing the affidavit in this case. These decrees and orders were made in the common pleas court, Franklin county, Ohio. Thereafter, on January 7, 1931, upon motion of counsel for Walter Sonnenberg, the defendant in the divorce case, the following certification of transfer, under Section 8034-1, General Code, was made:

“Upon motion of the defendant herein and for good cause being shown, the motion to transfer and certify the cause herein so far as it concerns and has to do with the care, custody and control of said minor child, be and the same hereby is sustained.
“It is hereby ordered and decreed by this court that so far as the care, custody and control of said minor child herein in this case, that portion be and the same hereby is surrendered by the Common Pleas Court of Franklin County, Ohio, and is transferred and certified to the Juvenile Court of Franklin County, Ohio, under the statutes in such cases made and provided, and to be dealt with according to law.”

This entry was approved by the judge of the common pleas court, division of domestic relations, Franklin county, Ohio.

None of the proceedings in the divorce case were offered in evidence in the trial of the instant case, nor were the motion to certify and the entry thereon, and we consider them only collaterally, and could not employ them in making determination of the case presented to us upon the record. The only evidence on this subject in the record is the statement of Mrs. Linthwaite that the custody of the child was awarded to her by the common pleas court.

We thus have presented for our consideration a charge of dependency against the minor, Donna Jean Sonnenberg, under the Juvenile Act of Ohio (Section 1639 et seq., General Code) and the first question to be determined is whether or not the charge set forth in the affidavit constitutes dependency. It will be noted that the statement is that the minor child is a dependent child because its parents are divorced. The word “dependent” has a special meaning under the statute, and, of course, a different general meaning of common knowledge. Any child is dependent in a sense, but under the Juvenile Act is dependent only if there is no one who is meeting the obligation of care, support, and training, which the minor has the right to receive from a parent under the law. The special and controlling definitions of a dependent child are found in Section 1645, General Code, as follows: “For the purpose of this chapter, the words ‘dependent child’ shall mean any child under eighteen years of age who is dependent upon the public for support; or who is destitute, homeless or abandoned; or who has not proper parental care or guardianship, or who begs or receives alms; or who is given away or disposed of in any employment, service, exhibition, occupation or vocation contrary to any law of the state; who is found living in a house of ill fame, or with any vicious or disreputable persons or whose home, by reason of neglect, cruelty of depravity on the part of its parent, step-parent, guardian or other person in whose care it may be, is an unfit place for such child; or who is prevented from receiving proper education or proper physical, mental, medical or surgical examination and treatment because of the conduct, inability or neglect of its parents, step-parent, guardian or other person in whose care it may be; or whose condition or environment is such as to warrant the state, in the interest of the child, in assuming its guardianship.”

It seems obvious, and therefore more difficult of demonstration, that the minor in this case was not a dependent child merely because a daughter of divorced parents. If a child of divorced parents is dependent, by the same reasoning the child whose parents are deceased is dependent. In either case the child may be under safer custody, assured better support and in finer environment, though separated from its parents. It is too harsh, under the letter and spirit of the act, to make a child a ward of the court during all its minority by a finding of dependency, made upon the bare showing that its parents are divorced.

The record contains no evidence whatever tend-' ing to show that the maternal grandmother is an unsuitable person to have the custody of the child; or that her home is an unfit place in which to rear the child. The report of the probation officer to the court, the testimony of other officers to the court, and of lay witnesses, is to the effect that the home in which the child is being reared is a suitable one, and that she is having cultural advantages, religious training and splendid care. This is not questioned by counsel in the record, nor in presentation in this court.

The theory of counsel in presenting and the court in trying the case seemed to be that the sole question for determination was the right of custody of the child as between a parent and grandmother,' and that, as the parent primarily by law has a prior right to the custody of his children over others, and it appearing that he now has a suitable home and is properly prepared to give his child advantages, schooling, care and comfort, he should be awarded its custody. And this was done. This theory we cannot support on the case presented to the juvenile court.

We do not conceive the purpose of the dependency act to be to require determination of the question which of two suitable homes is the more suitable, or which of two individuals, both fit to have the custody and care of the child, is the more desirable, unless and until it appears that the child is dependent under the statute.

The charge in this case was the dependency of the minor. There is no evidence tending to support it, and the court does not in its entry make such a finding. A judgment of dependency, if supported by the testimony, was the basis of pay further action by the court.

It follows, therefore, inasmuch as the affadavit does not state a jurisdictional charge under the statute and the proof does not support any charge of dependency which could be made thereunder, and the court makes no adjudication of dependency in its judgment, that error intervened in this case to the prejudice of the plaintiff in error, and the case must be reversed and the minor discharged.

We give some consideration to the question raised respecting the authority of the juvenile court to make determination of the custody of the minor in this case in the proceedings instituted by the filing of the affidavit under consideration, and in so doing apprecíate that we are not required to consider it to dispose of the error proceeding.

The certification of transfer in the divorce case of Sonnenberg v. Sonnenberg had the effect of bringing that case, as it related to the care, custody and support of the minor, into the juvenile court, and it should there be styled and carried as in the original action, and subsequent orders relating thereto should be made in .that case. It is separate and distinct from and has no relation to an action under the dependency or delinquency sections of the statute. The juvenile court is charged with knowledge of the existing orders in the divorce case affecting the care, custody and' support of the minor, and they are effective until reversed or modified.

The anomaly appears in the instant action. We now have a judgment specifically affecting the custody of a minor in a dependency action of record in the juvenile court, and directly counter thereto in the case of Sonnenberg v. Sonnenberg, in the same court, we have an unmodified entry awarding the custody of the minor to the maternal grandmother. This latter judgment is not part of nor is it directed to the record in the divorce case, nor could it be under the present status of the proceedings.

It is interesting to look at Sections 8034-1 and 1642-1, General Code, in this connection.

Section 8034-1 provides: “In any case where the common pleas court, or a probate court having jurisdiction, has made an award of the custody of a minor child or children and an order for support of such minor child or children, such court may certify the same to the juvenile court of the county for further proceedings thereunder according to law, and thereupon the jurisdiction of the common pleas court, or probate court, in such case as to the custody and support of such minor child or children shall cease.”

Section 1642-1 provides: “In any case where the custody and support of a minor child or children has been determined and decreed by the common pleas court, or a probate court having jurisdiction, and such case has been certified to the juvenile court as provided in Section 8034-1 the juvenile court shall have jurisdiction to proceed therein as in original cases.”

"We interpret this language to mean that the juvenile court has jurisdiction to proceed in the Sonnenberg divorce case respecting the subject-matter transferred to the court as though originally instituted in the juvenile court. This contemplates the same procedure, if it is desired to modify the decree, as in the common pleas court.

If the father of the child, who was responsible for the institution of the dependency proceedings, desires a modification of the order affecting the custody of the child in the divorce case, it would be regular and proper that he file a motion in that case to modify the former order by awarding the custody of the child to him. In such action he and not the state would be the party affected. If this were done it is procedural, and necessitated that notice be given to the maternal grandmother, Mrs. Linthwaite, who had a substantial right under the former decree, that such motion had been made and would be heard at a certain fixed date. This procedure would enable her to appear and make her proper defense, if desired, and from the action of the court, if unfavorable to her, she would have the right to prosecute error.

In the dependency action the maternal grandmother is not a party, had no right to appear and defend, could take no exception to the action of the court, and could not prosecute error to the judgment. The trial court in the divorce case, under Section 11987, General Code, had jurisdiction to make such order for the disposition, care and maintenance of the child as was just, before this judgment could be vacated or reversed; or modified proceedings should have been regularly instituted in that case. Any other construction would terminate the continuity of jurisdiction that has always been recognized in custodial and support orders in divorce cases, and relegate the procedure to dependency and delinquency actions.

The question presented has been under consideration in three instances. In re Konneker, 30 Ohio App., 502, 165 N. E., 850, second syllabus: “The Legislature having defined a dependent child and provided a special court proceeding for determining such dependency, the power thus conferred must be exercised by the court within the jurisdiction granted, and not otherwise.”

This supports our conclusion that the only matter for adjudication before the court in the instant proceeding was a determination as to the dependency of the child, a proceeding in which the question to be determined obviously was different from that which would have been presented had there been a motion to modify in the divorce case.

The Attorney General of Ohio has given consideration to the dependency and delinquency statutes in Opinions of Attorney General (1925), page 160. This opinion is of interest and the theory in support thereof in the main sound. In it the Attorney General considers the narrow question presented in our case. The conclusion reached is that in the juvenile court further proceedings incident to the custody of children, where that question has been certified from the common pleas court, are conducted just as though the case arose under the juvenile court section. If we rightly interpret it the determination is to the effect that the case should be considered as though it originally arose in the juvenile court, and as the juvenile court only has jurisdiction under acts relating to dependency and delinquency, it should be treated as such an action. We are not in accord with this view. We do not believe that, independent of any charge of dependency or delinquency, it was the purpose of the Legislature to change a case wherein only the custody and support were involved to the latter type of case.

We are of the opinion that the purpose of this legislation, as manifested by a consideration of Section 8034-1 in conjunction with Section 1642-1, is to clothe the juvenile court with jurisdiction to proceed in divorce cases which have been certified to it, in a matter respecting the custody and support of a minor, as the common pleas court would have been authorized originally to do; that the case certified does not thereby become a case under the dependency or delinquency statutes, but retains its character as an adversary proceeding, bearing the same style and to all intents and purposes the identity of the original case. Thereafter, should modification of the order respecting the custody or support be desired such action could be invoked by tbe same procedure as is commonly recognized in such cases, and until the judgment respecting the custody and support in the divorce case has been so modified, it should be recognized as a subsisting order by the juvenile judge. Even if the opinion of the attorney general was correct, namely, that the juvenile court may proceed under its own procedural requirements, nevertheless some sort of procedural step is necessary. In order to give sanctity to court orders which substantially affect the rights of parties, such parties, before they can be divested of the rights so conferred upon them, should be afforded an opportunity to defend against any change or modification.

We do not say that the juvenile court cannot consider and determine a charge of dependency or delinquency respecting a minor without modification of an order respecting its custody which order has been certified under Section 8034-1, General Code, but we hold that modification of custody cannot be accomplished by dependency proceedings unless dependency be charged and proven.

Judgment reversed and minor released.

Allread, P. J., and Levine, J., of the Eighth Appellate District, sitting by designation, concur.  