Opinion
No. 36117
Decided April 13, 1960.
Appeal — Supreme Court — Allowance of motion to certify record — Issues raised by cross-motion not before court, when — Cross-motion overruled — Divorce and alimony — Power of court to order payment for minor children — Electing to matriculate in college.
1. In a case before the Supreme Court pursuant to allowance of a motion to certify the record, issues presented by a cross-motion to so certify which was overruled are not before the court for consideration.
2. In a divorce action, it is not abuse of discretion as a matter of law for the trial court, having jurisdiction of the parties, to order payments by the father for the college education of minor children electing to matriculate in an accredited college.
APPEAL from the Court of Appeals for Cuyahoga County.
The parties hereto were divorced by a decree entered June 11, 1953, by the Common Pleas Court of Cuyahoga County. The action was brought by the wife, who is the appellant here and who will hereinafter be referred to as the plaintiff, against her then husband, appellee here and who will herein be referred to as the defendant. Five minor children had been born of the marriage, and their custody was awarded to the plaintiff and a separation agreement previously entered into was incorporated in the decree. On April 21, 1958, the plaintiff filed a motion seeking a modification of the order in the decree of the court for the support of the minor children. After hearing evidence on this motion, the court, by journal entry dated September 30, 1958, increased the amount payable by defendant to plaintiff for the support of the minor children from $300 to $400 a month, and ordered that he pay certain medical and dental expenses for the children. The journal entry then provides that "the defendant shall pay to the plaintiff the sum of five hundred dollars ($500) per year payable at the beginning of the college year, for each of the minor children of these parties electing to matriculate in any accredited college, but no one child shall be entitled to more than four (4) years of payments."
The defendant perfected an appeal from this order to the Court of Appeals, which, by journal entry filed May 15, 1958, found that there was sufficient evidence to support the finding of the trial court that there was such a change of conditions as to justify the increase in the monthly order of support and the order requiring the defendant to pay the medical expense, but which entry further states "that the order of the court compelling the defendant-appellant to pay $500 per year for the college education of each child is void and that said order entered without authority constitutes error prejudicial to the defendant-appellant." The Court of Appeals accordingly modified the judgment of the Common Pleas Court by striking therefrom the paragraph quoted above providing for payment for minor children matriculating in college and, as modified, affirmed the judgment.
The plaintiff complained to this court, by motion to certify the record, of the action of the Court of Appeals in striking the paragraph referred to, and the defendant made complaint, by his cross-motion to certify the record, of the action of the Court of Appeals in affirming that part of the judgment of the Common Pleas Court ordering an increase in the monthly support payments and ordering medical allowances. This court overruled the defendant's cross-motion to certify, and the cause is before this court pursuant to the allowance of the plaintiff's motion to certify.
Mr. Alto W. Brown, for appellant.
Mr. H. Vincent Mitchell, in propria persona.
Both in his brief and in his oral argument on the merits, the defendant stressed his claim that the Court of Appeals erred in affirming the judgment of the trial court in modifying its original order by increasing the amount of monthly support required to be paid by him and in requiring that he pay certain medical charges. Such affirmance was the basis of the defendant's cross-motion to certify, and the overruling of that motion removed those points from consideration by this court. The fact that the case was heard on its merits pursuant to the allowance of the motion to certify does not alter this fact, and the points complained of were as effectively removed from our consideration as though they had been the subject of the motion only to certify which had been overruled. Where a cause is before this court pursuant to the allowance of a motion to certify, issues presented under a cross-motion to certify which was overruled are not before us for consideration.
The real issue presented by this appeal, and the only one remaining following the overruling of the defendant's cross-motion to certify, concerns the power of the trial court to require the defendant to pay part of the cost of a college education for the minor children. This court has frequently in the past considered this problem more or less obliquely, but this is the first case in which the question has been squarely presented in the absence of complicating factors.
The most recent case in which consideration was given to this point is Robrock v. Robrock, 167 Ohio St. 479, 150 N.E.2d 421. That case is similar in many respects to the present one, and, incidentally, it is interesting to note that in each case the separation agreement entered into between the parties and incorporated in the decree of divorce required the maintenance of insurance on the husband's life and that such an obligation, there found to be binding, was an issue in the Robrock case but is not involved here. However, the Robrock decision sets no precedent for our principal problem, because there the incorporated separation agreement required the husband to provide a college education for the children. Such is not the situation here, the agreement being entirely silent on this subject.
Before passing to a consideration of the point of particular concern, we might observe that there is no doubt here as to the jurisdiction of the trial court in the premises. All parties were properly before the court, and, although the plaintiff has since remarried and removed herself and the children from the state, this move was accomplished with the acquiescence of the trial court and the defendant, and its jurisdiction remained undisturbed. We might further observe at this time that we are not concerned with college provisions for the children after the age of 21, a factor which has complicated some other cases, since the agreement here specifically concerns only minor children. (The fact that such provision extended past the children's 21st birthdays was the basis of Judge Zimmerman's dissent in the Robrock case, supra.)
We are here specifically refraining from discussing the educational backgrounds of these parents, their personal economic circumstances, and their individual situations generally, because such discussion might be misconstrued as an indication that those factors were compelling in our deliberation and should be taken as criteria in future cases. The fact is, however, that an abundantly full factual presentation was made in the trial court, and the record further shows that the parties were ably represented. Thus, the trial judge was assisted by counsel by having presented to him the legal authorities bearing upon his discretionary power to make the disputed determination and, more importantly, had before him all the facts necessary to make that determination. There is thus presented to us squarely only the question of the trial court's discretionary power, and it is our conclusion that it was not abuse of discretion as a matter of law for the trial court, which had jurisdiction of the parties, to order payment by the father of these minor children electing to matriculate in an accredited college.
Our conclusion in this regard being based only on the determination that the trial court possesses the discretionary power to decide whether under given circumstances a certain parent may be required to provide or contribute to a college education for his child, it becomes unnecessary for us to consider the propriety of judicially noticing whether the passing years have increased the necessity for, or the desirability of, higher education. It is, however, interesting to note that the defendant opened the argument of his brief in this court with the following sentence: "The defendant is of the opinion that this court should recognize the fact that today a college education is as necessary a preparation for adult life as a common school education was in 1900 or a high school education was in 1920." This conclusion is rather exhaustively discussed in Calogeras v. Calogeras, 10 Ohio Op. (2d), 441 (Juvenile Court, Cuyahoga County), but because, as indicated above, our decision is not bottomed upon changed national or world educational conditions, we make no inquiry into that area.
In accordance with the foregoing, we are of the opinion that the judgment of the Court of Appeals should be, and it is hereby, affirmed in part and reversed in part.
Judgment affirmed in part and reversed in part.
WEYGANDT, C.J., TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.
ZIMMERMAN, J., concurs in paragraph one of the syllabus.