Mellinger v. Mellinger

MIDDLETON, P. J.:

Epitomized Opinion

This was an action brought in the Common Pleas Court of Summit county by Helen Mellinger against Etna Mellinger for alimony and the.custody of their only child, aged about three years. The Common Pleas Court found in favor of Mrs. Mellinger and gave her a judgment for alimony and awarded her the custody of the child. Error proceedings were then prosecuted by the defendant. It appeared by the record that prior to this action Mrs. Mellinger had instituted proceedings for divorce. This action was heard and dismissed without granting either party any relief. When the case at bar was presented to the Court of Appeals, the bill of exceptions had attached to it as an exhibit a complete transcript of the evidence taken in the trial of the former case. This was attacked by Mrs. Mellinger on the ground that it was no part of the record. It also appeared that there had been an agreement between lounsel to suppress all evidence as to any act or conduct of the parties and any transaction or matter reflecting on their rights which occurred or transpired prior to July, 1921, which was the date of the first trial. The transcript also disclosed that, very important evidence bearing on the competency of the parties to properly provide for the child was thereby excluded: In reversing the judgment of the lower court, the Court of Appeals held:

1. That neither party to the instant action was entitled to any relief for the reason that by collusive agreement they suppressed important, relevant and material evidence which the due and proper administration of the law required should be submitted to the court.

2. That the judgment of the lower court was manifestly against the weight of the evidence, as ic disclosed that plaintiff was unfit to have charge of the child.

3. The child had reached an age where it may and should be placed in the care of some disinterested person or institution.