Opinion
No. 9486
Decided May 18, 1964.
Divorce and alimony — Service of summons by publication — Court without jurisdiction to decree child-support payments, when.
Service of summons by publication in a divorce action, not accompanied by any appearance of the defendant for the purpose of contesting the issues raised by the petition, is not sufficient to clothe the court with jurisdiction to decree the payment of money, either by way of support of minor children or by way of alimony.
APPEAL: Court of Appeals for Hamilton County.
Mr. Elmer M. Goldman, for appellee.
Mr. Joseph Schwartz, for appellant.
This is an appeal on questions of law from a decree entered by the court below granting a divorce to the plaintiff, appellee herein, on her petition therefor, and also ordering the defendant, appellant herein, to pay certain sums for the support and maintenance of three minor children alleged to be the issue of the marriage.
Service by publication was had on the defendant who is in the military service. This service was sufficient for all purposes for which such service is lawful. Defendant entered an appearance in the case by counsel solely for the purpose of questioning the jurisdiction of the court to enter any order or decree for the payment of money.
Since the defendant, even though in military service, was represented by counsel in the cause, the sole assignment of error with which we are here concerned is whether or not the court had jurisdiction to make an award for support and maintenance where service was had by publication only. This matter was called to the attention of the court below by means of a motion to set aside both the temporary and permanent allowances. It was claimed and stipulated throughout that the defendant entered his appearance for this purpose only.
The law is rather clear that a service by publication in a divorce matter, not accompanied by any appearance of the defendant for the purpose of contesting the issues raised by the petition, is not sufficient to clothe the court with jurisdiction to decree the payment of money either by way of support of minor children or by way of alimony. Noble v. Noble, 80 Ohio Law Abs., 581, and Reed v. Reed, 121 Ohio St. 188.
It is accordingly held that the judgment heretofore entered herein in the court below must be modified to eliminate from it the provision "that the defendant pay support and maintenance for minor children in the amount of thirty-five ($35) dollars per week, in addition 1% poundage."
The cause will be remanded to the court below with instructions to modify the judgment in the respect stated above, the judgment being affirmed in all other respects.
Judgment modified and, as modified, affirmed.
HILDEBRANT and LONG, JJ., concur.