
    In re Hampshire.
    
      Divorce — Custody of child awarded mother — Bights of father after wife’s death — Original jurisdiction exclusive and continuing — Guardianship by probate court void, when.
    
    1, Where husband and wife have been divorced and by decree of court the mother has been granted the exclusive custody of their minor child, under ten years of age, and the mother dies, the fact of her death gives to the father no higher right to the custody of the child than he had prior thereto; the custody of the child is still exclusively under the control of the court, and this jurisdiction is a continuing one and may be modified whenever the character and circumstances of the case or of the parties require it.
    2. Where a decree of divorce has been granted in the county in which the parties then resided and a proper order has ibeen made as to the custody of a minor child under ten years of age, and the custody of such child has been granted to the mother, who, up to the time of her decease, resided with the child in the county wherein the decree was originally entered, and the father, having removed to another county and there having gained a residence, is appointed guardian of such child in the county of his residence by the probate court therein, such appointment is null and void so far as the custody of the child is concerned, for the reason that such custody is exclusively vested in the court entering the original decree.
    (Decided November 7, 1922.)
    Error : Court of Appeals for Knox county.
    
      Mr. F. 0. Levering, for Hampshire.
    Messrs. Ewalt <& Blair, contra.
    
   Patterson, J.

On July 25, 1917, Maude B. Hampshire filed her petition in divorce against her husband, Ross M. Hampshire, and such proceedings were had in this cause that on the first day of November, 1917, the plaintiff obtained a decree of divorce by the judgment and finding of the common pleas court of Knox county, the county in which such action was pending. The decree of divorce in part is as follows:

“It is therefore ordered and considered and adjudged by' the court that the marriage contract heretofore existing between Maude B. Hampshire and Ross M. Hampshire be, and- the same is hereby dissolved, and both parties are released from the obligations of the same.

“It is further ordered that the custody, care, education and control of the minor child of the parties hereto be, confided to the mother, Maude B. Hampshire, exclusively.”

At the time of the filing of this petition for divorce the plaintiff and the defendant were the father and mother of a boy about six months. old, and this boy is now about the age of five years.

Some time in the month of September, 1921, Maude B. Hampshire, the former wife and the exclusive custodian of this minor child, died. At the time of the commencement of the action for divorce the plaintiff and the defendant both resided in Mount ‘Vernon, and at the time of the filing of the petition, and up until the time of her death, Maude B. Hampshire and the minor child resided with her parents, Mr. and Mrs. Austin Wright, in the city of Mount Vernon. Ross M. Hampshire remarried, and removed to ¡Steubenville, and became a resident of Jefferson county.

After Mrs. Hampshire’s death, some proceedings were had before the judge of the court of common pleas -with reference to the custody-of this-minor child, and Ross M. Hampshire appeared at¡ these proceedings in person and by attorney.' While these proceedings were pending with reference to the custody of the child, on June 2, 1922,1 Park B. Blair, Judge of the Common Pleas Court/ issued the following order in writing: :

“My dear Mr. and Mrs. Wright — You are directed to let Ross have his child to visit with Him during Ross’s stay- in this county. He will p-rdb-i ably want to keep him for several days. I am disappointed that he has not been permitted to have him during my absence.” '

This letter was delivered-to Mr. Hampshire, and in company with the court bailiff he went to the home of Mr. and Mrs. Wright and -there secured the child and immediately left with the child td the place where he now resides in Jefferson county, Ohio, and has had this child there ever since. ¶

Thereupon contempt proceedings were filed against Hampshire, and the matter was heard before the court of common pleas of Knox county] and Hampshire was adjudged to be in contempt of court, and the court of common pleas made tile following order and finding:

“It is therefore considered and adjudged by the court that the said Ross M. Hampshire be, and he is hereby required to return the said child, to-wit: Donald Hampshire to the home of its grandparents, Mr. and Mrs. Austin Wright, in Mount Vernon, Ohio, from whence he took said child, also that he pay a fine of $25 and the costs of this action, and that he stand committed to the jail of Knox County, Ohio, until he has fully complied with the terms hereof, and shall have returned said child to its grandparents; and that a warrant issue for such commitment if he fail to comply with the said sentence and judgment herein.”

To this judgment and finding, that Ross M. Hampshire was guilty of contempt of court, error is prosecuted to this court.

It is contended upon the part of the plaintiff in error, Ross M. Hampshire, first, that there is no order of court of record in the court of common pleas of Knox county in the ease of Hampshire against Hampshire subsequent to the death of the mother; second, that upon the death of the mother, the care and custody of this minor child automatically reverted to the father.

We will consider these propositions in the inverse order. Sections 8032. and 8033, General Code, provide as follows:

“jRights and Duties of Parents Separated or Divorced — When husband and wife are living separate and apart from each other, or are divorced and the question as to the care, custody and control of the offspring of their marriage is brought before a court of competent jurisdiction in this state, they shall stand upon an equality as to the care, custody and control of such offspring, so far as it relates to their being either father or mother thereof.

“Court to Determine Custody of Children — • Upon hearing the testimony of either or both of such parents, corroborated by other proof, the court shall decide which one of them shall have the care, custody and control of such offspring, taking into account that which would be for their best interests, except that, if such children be ten years of age or more, they must be allowed to choose which parent they prefer to live with, unless the parent so selected, by reason of moral depravity, habitual drunkenness or incapacity, be unfitted to take charge of such children, in which event the court shall determine their custodian. The above provisions permitting children to choose their parent with whom they desire to live, also shall apply to proceedings for modification of the former orders of the court, fixing the custody thereof, as in original actions. If upon such hearing it should be proved that both parents are improper persons to have the care, custody and control of their children, in its discretion, the court may either designate some reputable and discreet person to take charge thereof, or commit them to a county or district children’s home in which they or their parents have a legal settlement.”

It is contended upon the part of the plaintiff in error that these -are the governing and controlling sections with reference to this case, and that, according to their provisions, upon the death of the mother who was granted the custody of this child, the father has the right to its care and cus tody.

However, these sections must be construed in connection with Section 11987, and we are of the opinion that this is the controlling section in this case. The latter part of Section 11987 reads:

“The court shall make such order for the disposition, care and maintenance of the children, if any, as is just.”

In the trial of the divorce case, the court deemed it just and proper to grant the exclusive custody of this child to the wife, and, whatever may 'be the law in other states, we are of the opinion that it is settled in Ohio that the custody of minor children when decreed by the court is continuing and that the court making such order has the exclusive right at all times to change its order or make such new orders as may be just and proper with respect to the custody of the minor children involved in a divorce case.

In Rogers v. Rogers, 51 Ohio St., 1, the court says at page 4:

“The authority of the court over the matter of custody of minor children of parties to divorce proceedings is probably inherent, but it is in terms given by the divorce statute, Section 5696 [now Section 11987, General .Code], where it is provided that ‘the court shall make such order for the disposition, care, . and maintenance of the children, if any there are, as is just and reasonable.’ That this jurisdiction is a continuing one, and that it ‘may, on proper application, be invoked to modify orders originally made in respect to the custody of children whenever the character and circumstances of the case or of the parties require it,’ was held in the case of Hoffman v. Hoffman 15 Ohio St., 427, and affirmed in Neil v. Neil, 38 Ohio St., 558.”

.. Tn the enactment of laws relative to the custody of minor children where the parents are divorced, it was evidently the intention of the legislature to enact laws such that the interests of those who are affected by them would be taken care of, such that the persons whose interests are to be affected are treated as wards of the court, and it was intended to provide for the care of these wards rather than for the care of their parents, and the question to be determined in. such proceedings is the question of what is for the best interest of the ward. It follows from this decision in the Rogers case, and from the Ohio cases therein cited, that the order for the custody of this minor child was a continuing order by the court of common pleas of Knox county, and that upon the death of the mother the custody of this child did not automatically revert to its father but was subject to the further orders of the court entering the original decree.

With reference to the first proposition contended for by the plaintiff in error, that there is no order of court of record entered since the death of the mother, it appears of record that the court of common pleas was still exercising jurisdiction over the custody of this child; that the plaintiff in error recognized this jurisdiction by appearing in person and by attorney with reference to some modification of the former order made necessary by the death of the mother. The claim is made that there were some papers formally filed, but the claim is made that they are lost and do not now appear of record, however we are of the opinion that that is not material to the disposition of this case, inasmuch as we have held, as stated above, that the common pleas court still retains jurisdiction over the custody of this child by virtue of the original decree.

It is also claimed upon the part of the plaintiff in error that he has been appointed guardian of this minor child by the probate court of Jefferson county, the county in which he now resides, but the proof in this case shows conclusively that this child has always been á resident of Knox county, having resided with its mother and grandparents until the death of the mother, and with its grandparents subsequent to the death of the mother and up until the time the child was removed from the county by the father.

Section 10915, General Code, provides: “When necessary the probate court in each county shall appoint guardians of minors resident in such county.”

This appointment can confer upon the plaintiff in error no higher rights, as it will be noted that this appointment must be made in the county in which the minor resides, and this minor having always resided in Knox county the probate court of Jefferson county could acquire no jurisdiction whatever by the appointment of a guardian, and the appointment of a guardian would be null and void and therefore could not confer upon the guardian so appointed any rights whatever as to the care and custody of the child.

Judgment affirmed.

Shields and Parr (of the Seventh Appellate District, sitting in place of Houck, J.), JJ., concur.  