127 N.E.2d 761 | Ohio Ct. App. | 1954
This cause is here on appeal on questions of law and fact from an order of the Juvenile Court finding plaintiff-appellant unfit to have custody of two minor children, aged eleven and nine years; awarding their custody temporarily to the Child and Family *522 Agency for placement in a foster home; and further ordering plaintiff to pay $20 per week for the support and maintenance of such children.
Notice of appeal on questions of law and fact was filed, and defendant-appellee moves to dismiss the appeal on the ground that the plaintiff failed to file a bond as required by Section 8005-7, General Code (Section
But effective January 1, 1945, Section 6 of Article IV was again amended to read:
"The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procendendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders."
In Youngstown Municipal Ry. Co. v. City of Youngstown, *523
In enacting Section 8005-7, General Code, the Legislature made no distinction between an appeal on questions of law and an appeal on questions of law and fact. Notwithstanding the provision for a cost bond on the appeal, it is difficult to conceive that the Legislature intended to afford the contending parties a trial de novo in the Court of Appeals in custody cases which involve no chancery jurisdiction. Having failed to denominate the appeal as one on questions of law and fact, we conclude that the appeal referred to in the section is one on questions of law only.
Section 12223-3, General Code, contemplates that every final order, judgment or decree of a court may *524
be reviewed as provided in the Appellate Procedure Act, unless otherwise provided by law. Section 8005-7, General Code, provides no manner of review, nor is any time fixed for filing notice of appeal or the giving of bond. We therefore apply the provisions of the Appellate Procedure Act in the determination of the motion to dismiss the appeal. Section 12223-6, General Code, provides that no appeal shall be effective as an appeal on questions of law and fact unless and until a supersedeas bond is filed at the time the notice of appeal is required to be filed. But if a case can not be heard as an appeal on questions of law and fact because no appeal bond has been filed, the appeal is not dismissed but stands for hearing as an appeal on questions of law. Bauer v. Grinstead,
The plaintiff and the defendant were married in 1941 and are the parents of the two children involved in this proceeding. Upon their divorce in March 1946, custody of the children, then four and three years of age, was awarded plaintiff and defendant was ordered to pay $40 per month for the support of the children. The cause was certified to the Juvenile Court for further proceedings. Defendant testified he had paid $798 pursuant to such order, but in February 1951, *525 plaintiff was awarded a judgment in the sum of $1,372 for arrearage in payments. Defendant was purged from contempt, presumably because of inability to pay on account of mental and physical illness.
On June 20, 1952, defendant filed a motion for modification of the custody order of March 26, 1946, which, after a hearing and report of a referee, was dismissed on October 7, 1952. From the report of the referee, it appears that defendant refused to participate in the hearing because of the ruling of the referee excluding evidence of conduct prior to the divorce.
On April 2, 1953, defendant again filed a motion to modify the support and custody order, in which motion he recited that on October 7, 1952, the court had entered the order denying his motion for custody and alleging that since such date there had occurred a substantial change in circumstances and that he had further evidence of neglect of the children by the mother.
This motion came on for hearing on June 12, 1953. Defendant ineptly attempted to support his motion without benefit of counsel. The court consistently sustained objections relating to any misconduct on the part of the plaintiff prior to October 7, 1952. Defendant failed to produce any evidence to support a finding that plaintiff was unfit to have custody of the children and at the conclusion of his examination plaintiff's counsel moved to dismiss the motion. Thereupon the following transpired:
"The court: He hasn't rested yet. You see, Mr. Burkhart, the custody and welfare of children is involved here, and the court, in a recent hearing with which you are perfectly familiar through your law partner, Mr. Burns, has gone over the matter of the fitness of Mrs. Pettigrew at this time, to have custody of John, and it stands to reason that if the court has found her — which it has — unfit to have the custody of *526 John, the same thing goes with reference to Mary and Harry. So, in order that you may have the benefit of the information which the court has about Mrs. Pettigrew, the court is introducing and receiving into this hearing the record in the Pettigrew case, for the purpose of appeal.
"Mr. Burkhart: I would like to enter an objection to that.
"The court: With that you rest your case, I take it, Mr. Bachtel?
"Mr. Bachtel: Yes.
"The court: You may proceed, Mr. Burkhart."
Upon this appeal, error is assigned to the introduction and consideration by the court of the record in the Pettigrew case over objection of the plaintiff.
In determining whether improperly admitted and potentially prejudicial evidence prejudices an appellant or whether substantial justice has been done, a reviewing court should not weigh the other evidence or determine the credibility and effect of conflicting evidence, unless the weight, credibility and effect of that evidence is substantially in favor of the appellee. Hallworth v. Republic Steel Corp.,
The mere fact that testimony has been given in a former proceeding between parties to a case on trial is no ground for its admission in evidence. Testimony given at a former trial is mere hearsay. Cf. 20 American Jurisprudence, 579, Section 686. It is definitely established that the admission of hearsay evidence requires reversal, unless it manifestly appears that its admission could not have prejudiced the party against whom it was offered. James Wilson Co. v. Barkalow,
The Supreme Court will take judicial notice of the *527
record in a case previously before it involving the same subject matter and party. State, ex rel. Galloway, v. IndustrialCommission,
An exception to the rule excluding hearsay is provided in Section 11496, General Code (Section
Since the cause is to be remanded for a new trial, we volunteer the following comment. We have recently had the disagreeable task of reviewing the record upon appeal in thePettigrew case and have considered it upon the instant appeal in determining its prejudicial character.
It reveals that plaintiff was remarried to one Samuel H. Pettigrew on July 27, 1946, and one child, John Pettigrew, was born as the issue of this second marriage, on January 31, 1947. On June 19, 1953, a petition for divorce of the plaintiff, Mary Pettigrew, was dismissed and upon the cross-petition of Samuel H. Pettigrew, Mary was found guilty of gross neglect of duty and a divorce was granted. Without specifically finding that either parent was unfit to have custody of the child, the judgment ordered that the custody be awarded the Child and Family Agency for placement in a foster home and that the defendant, Samuel, pay the sum of $10 per week for the support of the child John Pettigrew. The record in the Pettigrew case discloses pitiably sordid conduct on the part of the plaintiff and the defendant. They are endowed with more than average education and intelligence, but during their marriage participated in organizations later discovered to be subversive in character. Each of them disclaimed membership in the Communist Party. *529
Upon the appeal from the judgment entered in the Pettigrewcase, it was intimated that the action of the trial court was influenced by plaintiff's participation in these organizations. In the record in the Bachtel case, the court remarked:
"Mr. Burkhart, one thing that has happened since October 7, 1952, is that Mrs. Pettigrew has been divorced from Mr. Pettigrew, and the court has learned through the trial that went on two or three days, I forget how long, of her, shall we say, `pink' tendencies, her pink affiliations or connections."
That a parent may be a fellow traveler is insufficient to support a finding that such person is unfit to have the care and custody of a child. But the record discloses the vicious result of flirting with communist philosophy. Although intelligent and well educated, there resulted a breakdown in observance of moral standards and rectitude which afforded a basis for awarding custody of the child to the Child and Family Agency. Nor can criticism be directed to proper afflliation with members of another race in the interest of promoting racial tolerance and good will. But the record reveals that the plaintiff surreptitiously entertained members of the opposite sex and another race at night in her home. Under such circumstances, extra-marital relations by a wife, whether it be with her own or that of another race, imports conduct revealing unfitness to have custody of minor children. After reviewing the record in the Pettigrew case, we promptly affirmed the judgment.
As above indicated, objections were sustained to the introduction of any testimony concerning the conduct of the plaintiff prior to October 7, 1952. We agree with the salutary rule announced in Rauth v. Rauth,
We also feel impelled to make this further comment. Section 8002-3, General Code (Section
The record reveals that defendant wholly lacks parental responsibility. He is a doless drone affected with hypochondria which has thwarted gainful employment. We realize that the Juvenile Court is all too frequently confronted with these slothful pariahs of society, but upon rehearing we respectfully suggest that before relieving defendant from his primary obligation of support he be required to show his inability to do so upon competent evidence, rather than to relieve him upon his uncorroborated statement of his inability, evidenced by his failure to comply with the order of the court.
A persuasive inference arises from the record that defendant is not motivated by affection or any real desire to protect the welfare of his children, but is actuated by vindiction toward his ex-wife. His effrontery is exhibited by his unwillingness to support his children and at the same time he urges that they be removed from the care and custody of their mother but at her expense — not his. It may be further observed that his condition of health was not so poor as to prevent him from spying, night after night, upon the peregrinations of Mary Pettigrew in obtaining evidence to be presented by Sam Pettigrew at the trial of his divorce action. At the risk of effrontery on our part, we respectfully suggest consideration should be given toward finding defendant in contempt and commitment to the house of correction for failure to comply with his obligations to support his children and the order of the court to that end. A period of forced employment might be conducive to relieving him from a *532 delusion that he is unable to meet his parental obligations.
With considerable regret, the judgment is reversed and the cause is remanded to the Juvenile Court for further proceedings.
Judgment reversed.
CONN and DEEDS, JJ., concur.