425 N.E.2d 930 | Ohio Ct. App. | 1979
This is an appeal from the Court of Common Pleas of Cuyahoga County, Probate Division.
The issue in this cause is whether Probate Court has jurisdiction to hear and determine an adoption proceeding concerning a minor child after the Domestic Relations Division of the Court of Common Pleas of another county has granted a divorce together with an order awarding custody of that minor child to one of the parents. Defendant-appellant, Dale A. Carrelli, contends that the divorce court retained exclusive and continuing jurisdiction over that child.
We disagree with appellant's position and hold that the Probate Court, under these circumstances, has jurisdiction to hear and determine such adoption proceedings.
On August 24, 1978, Edwin and Peggy Syversten, appellees herein, filed a petition to adopt Joey Allen Carrelli, the minor child of Sue Ann Phillips, their daughter, and Dale Carrelli, appellant herein. The petition was filed in the Court of Common Pleas of Cuyahoga County, Probate Division. Appellant appeared at the hearing on December 15, 1978, and objected to the adoption. The court found that appellant had failed without justifiable cause to communicate with Joey and to provide child support as required by judicial decree for a *106 period of one year immediately preceding the filing of the petition and that his consent to the adoption was unnecessary. The court further found that Joey had resided with appellees continuously for more than six months and that his placement in their home by his mother had been beneficial to the child, and it entered a final decree of adoption. Appellant appeals the decision and assigns two errors:
"I. The trial court was without authority to enter a final decree of adoption because the court had never acquired jurisdiction over the subject matter.
"II. The actions of the trial court, which lacked jurisdiction over the subject matter, operated to deny the appellant procedural due process of law in a court whose jurisdiction was competent."
Both assignments are without merit.
On October 31, 1974, the Court of Common Pleas of Warren County, Domestic Relations Division, rendered a decree divorcing appellant and Ms. Phillips and awarding custody of Joey to his mother. Appellant argues that the court which renders a divorce decree retains continuing jurisdiction to determine custody of the minor children of the marriage. Van Divort v. Van Divort
(1956),
Because jurisdiction of the Probate Court and the Domestic Relations Court is not concurrent, however, the two concededly valid rules of law invoked by appellant are inappropriate to a resolution of the instant case and are ineffective to deprive the Probate Court of jurisdiction.
The Probate Court, pursuant to R. C. Chapter 3107, has original and exclusive jurisdiction in adoption proceedings.State, ex rel. Portage County Welfare Dept., v. Summers (1974),
R. C.
Examination of the record demonstrates that the Probate Court's jurisdiction properly attached in the instant case. The petition, pursuant to R. C.
The divorce decree of October 31, 1974, required that appellant make weekly support payments of $15.15. Joey's mother testified that appellant made payments totalling $90 in 1974 and none thereafter; appellant himself admitted the truth of this testimony. Appellant further admitted that he failed to communicate with Joey after the divorce and that he saw him only once, immediately prior to the filing of the petition. Hence, the court was justified in determining, pursuant to R. C.
The Probate Court granted appellees' petition for adoption *108 in the proper exercise of its jurisdiction. That action extinguished the existing parent-child relationship and with it the jurisdiction of the Court of Common Pleas of Warren County, Domestic Relations Division, to make a determination of custody pursuant to that relationship.
The judgment of the Court of Common Pleas of Cuyahoga County, Probate Division, is affirmed.
Judgment affirmed.
JACKSON and DAY, JJ., concur.