Citation Numbers： 59 Ohio Law. Abs. 521, 1949 Ohio App. LEXIS 770, 97 N.E.2d 209
Judges： Guernsey, Jackson, Middleton
Filed Date： 12/17/1949
Status： Precedential
Modified Date： 11/12/2024
This is an appeal from an order of the Common Pleas-. Court of Henry County, Ohio, overruling the amended verified motion of Otto Miller, Jr., for an order modifying the former-order, judgment and decree of the Court of Common Pleas: entered on the 5th day of July, 1934, in Journal 32, page 316, of said court, wherein the plaintiff, Otto J. Miller, Jr., was-ordered to keep Policies numbered 1426599, 1426560 and' 1426561 in full force and effect during the lifetime of said Otto Miller, Jr., oy paying the premiums thereon; and the-further order of the court entered October 24, 1935, wherein the defendants, Proctor Patterson, Earl P. Disbro, John B. Dempsey and Elizabeth Clark Tyler Miller, as fiduciaries, out-of the trust fund designated in said order and decree were-directed to pay the quarterly premiums amounting to $485.25-per quarter on said policies; and wherein this plaintiff, Otto-Miller, Jr., was ordered to obtain three separate policies upon his life, which were obtained from the Sun Life Assurance-Company of Canada, Montreal, Canada, and being numbers. 1484551, 1484552 and 1484553 which replaced said policies heretofore set forth, so as to release the said Otto J. Miller from, all obligations of paying the premiums on said policies of insurance, and directing the said Earl P. Disbro, John B. Dempsey, The National City Bank of Cleveland, and Elizabeth. Clark Tyler Miller and their successors, if any, to refrain from further payment of the premiums accruing on said policies,. and ordering that plaintiff may be permitted to cancel said, policies and receive the cash surrender value thereof, and. for all proper relief.
The minor children of Otto J. Miller, Jr. and Irene Miller are the beneficiaries of the policies of insurance mentioned.
Upon their faces, the orders sought to be nullified appear to-have been made by the court of its own volition and not with the consent of or in conformity with an agreement of the-parties.
No effort has been made by any of the parties to have the-entries of said orders corrected by nunc pro tunc entries to-show that such orders were made with the consent of or pursuant to the agreement of the parties.
As that part of the original decree for divorce, which has-not been modified, prescribed that “the defendant Irene-Miller be and she hereby is awarded alimony for her support and the support of the minor children aforesaid, in the sum of $350.00' a month beginning as of June 1, 1934, until, the further order of the court,” the orders sought to be modi
In the case of Thiessen v. Moore, 105 Oh St 401, 137 N. E. 906, where the order of the court differed from the orders under consideration in the instant case, in that the wife was •decreed the sum of $10 per month for her support and maintenance, and was further decreed a life estate in certain real estate, and no provision other than a provision under consideration by the court was made for the benefit of the children, it was held that an order of the same general character as the orders under consideration in the instant case was beyond the jurisdiction of the court in an action for divorce and was absolutely void, and for that reason subject to collateral attack.
The record does not disclose that the wife objected to the provision for the benefit of the children of the parties, which is the matter under consideration in the instant case. The same situation obtained in the case of Thiessen v. Moore, supra. By express terms the provision could have been made a part of the alimony allowance to the wife, as the wife’s interest in the welfare of the children would have constituted sufficient consideration moving to her for the making of the allowance in such a manner. If the provision was not, by express terms, made a part of the alimony allowance, and it was the intention of the court that it should have been, said orders could have been corrected by a nunc pro tunc entry to expressly make the provision as a part of such alimony allowance.
It would further appear that as the orders of the court, in the absence of anything appearing to the contrary, are presumed to have been properly made in the exercise of its jurisdiction, it would be presumed, nothing appearing to the contrary, that the orders in question were made in the exercise of the jurisdiction of the court to allow alimony to the wife notwithstanding it is not expressly so prescribed in the entry of judgment, and that such presumption would be particularly applicable to the instant case, as it appears from the judgment entry that the husband was possessed of ample property at the time the divorce decree was rendered, to warrant such an allowance as alimony in addition to the sum of $350 per month specifically allowed to the wife as alimony for the support of herself and minor children.
Furthermore, it might be considered that Otto J. Miller, Jr.,
Notwithstanding these considerations we are constrained to follow and apply the decision of the Supreme Court, in the case of Thiessen v. Moore, supra, holding that provision of a divorce decree of the same general character as those in question in this action is absolutely void by reason of the court being without jurisdiction to make it, and therefore hold the provisions of the divorce decree and modification thereof with reference to such insurance in the instant case absolutely void.
As the provisions are absolutely void, acquiescence of the party sought to be bound thereby in the making of such provisions did not serve to make them effective, and his subsequent acquiescence over a long period of years in the payment of the premiums of insurance as prescribed in said orders without attempting to have said decree modified, does not estop him from now seeking modification of said judgment as prayed for.
For the reasons mentioned, the judgment of the Common. Pleas Court overruling said motion for modification is reversed, and this court, rendering the judgment the Common Pleas Court should have rendered, adjudges said provisions, void and orders judgment and decree modified accordingly.