Stouffer v. Stouffer , 1936 Ohio App. LEXIS 487 ( 1936 )

OPINION

By TERRELL, J.

Mrs. Stouffer was granted a decree for divorce and an award of alimony and custody of their only child, which decree was based upon the aggression of her husband. This decree was dated in June, 1934. The parties to the case had theretofore agreed in a written contract for the division of their property and for the payment of alimony and support of the minor child by the defendant. The contract of the parties was adopted by the court and written into the decree. It provided for certain monthly payments to be .made to Mrs. Stoufler and also provided that she should have the custody of the child with the right of Mr. Stouffer to visit it once a week. Payments were made by Mr. Stouffer under this decree for over a year. Then he ceased payments entirely and filed a motion with the trial court to modify the decree theretofore made pertaining to the payments of alimony, in which he asked the court to be relieved from his obligation to pay any sum or sums of money to plaintiff as alimony or for the support, care, education and maintenance of their minor child, or, in lieu thereof, to reduce the amounts of such payments provided for in such decree for the reason that plaintiff had removed the said minor child of the. parties out of the jurisdiction of this court and to the city of Wilmington, Delaware. This motion was heal'd and granted. The decree was modified by providing that the defendant pay to Mrs. Stouffer for the support, care, education and maintenance of said child the sum of $60.00 a month instead of that which the former decree provided of $175.00 a month. Plaintiff complained of said order of the court and filed her petition in error in this court.

After the filing of her petition in the trial court, plaintiff with the knowledge of defendant, took the child to the home of plaintiff’s mother in Wilmington, Delaware. At the time of the divorce trial and at the time of the decree for divorce and alimony, the child was in Wilmington, Delaware. During the time that defendant made payments under the decree, he visited the child about fourteen times at Wilmington, Delaware. He was -never denied the right to see his child on any occasion.

Upon the hearing of this motion for modification no evidence was introduced to show the change of circumstances or conditions of the parties from the time of the hearing of the divorce case and the granting of the decree therein.

It is our conclusion that the original decree should not have been modified unless the conditions existing at the time of the granting of the decree were changed or unless the court deemed it advisable to modify the decree as a disciplinary measure to compel one of the parties to perform the conditions in the decree contained.

Nowhere in the decree is it provided that Mrs. Stouffer should keep the child in this jurisdiction of -the court. It may well have been the understanding of Mrs. Stouffer that she was permitted to keep the child in Wilmington, Delaware, and'this conclusion might well have been justified from the fact that at the time of giving her the exclusive custody of the child she had the child then in Wilmington, Delaware. It is not beyond the power of the trial court to provide that the child shall be returned to this jurisdiction and to make an order to that effect upon proper motion, if it is deemed for the best interests of the child so to do. If this order were not then complied with, the trial court would be well within the exercise of its jurisdiction. to modify the decree by reducing the monthly payments of alimony provided in the decree. In this case no such motion or order was made. Mrs. Stouffer was not ordered to return the child to this jurisdiction nor was she granted the privilege of complying with such an order before the alimony award was reduced to one-third of its amount.

In this respect we hold that the trial court abused its discretion in reducing these payments without first giving Mrs. Stouffer the opportunity to return the child to this jurisdiction.

Counsel for Mrs. Stouffer argue that all Mrs. Stouffer will have to do to have the alimony payments restored is to return the child to this jurisdiction. A perusal of the modification order however discloses that it is an absolute reduction of the. payments in said decree provided from $175.00 a month to $60.00 a month and there is no condition attached thereto. The court does not provide that in case the child is returned to this jurisdiction that the alimony payments in the decree shall be restored.

This matter is remanded to the Common Pleas Court with instructions to overrule the motion to modify said decree.

LIEGHLEY, PJ, concurs in judgment.