Breisach v. Breisach , 37 Ohio App. 34 ( 1930 )

On June 20, 1925, Leah Breisach commenced an action for divorce against her husband, Louis A. Breisach. He filed an answer and cross-petition, and, upon final hearing, a divorce was granted to him, on April 14, 1926, and he was ordered to pay certain alimony to the wife and certain amounts for the support of the two minor children, whose custody was awarded to their mother. The order as to alimony and support of children was thereafter modified several times. In October, 1927, on the motion of plaintiff to modify the order for support of children, it was, on hearing, so modified as to require the payments to be made to an attorney of the court, DeWitt Fisher, as trustee. Some two years thereafter the cause was again heard on evidence, both parties being represented by counsel, on a motion made by the plaintiff, Leah Breisach, to reduce to a lump sum the amount of payments in arrears for the support of the children. On that hearing the motion was granted and the amount reduced to a lump sum, and on a subsequent hearing the amount so fixed was reduced to $1,892.68, by a remittitur, and Louis A. Breisach was ordered to pay to DeWitt Fisher, trustee, as had been theretofore ordered, that amount for the benefit of the children.

It is urged on behalf of plaintiff in error that this was in effect the rendition of a judgment in favor of one not a party to the case, and that it is therefore void. Section 11987, General Code, relating to divorce and alimony, provides that "the court shall make such order for the disposition, care and maintenance of the children, if any, as is just."

There seems to be a wide discretion reposed in the trial court in providing, in divorce cases, for the care and maintenance of children; but the order must be just. The evidence introduced at the time Mr. Fisher was first named as trustee has not been preserved, and we do not know what moved the court to require that the payments should be so made, but we must assume that sufficient grounds were shown to exist therefor. The order making the sums payable to him for the use of the children is not a judgment in his favor, but rather a finding and order that Breisach pay to him, as trustee, theretofore appointed by the court, the amount named. Fisher, as trustee, would thereupon become a representative or agent of the court to receive the amounts ordered paid, and to look after their proper disbursement for the benefit of the children.

The same infirmity claimed to exist against the order made in this case was urged in the case of Ex Parte Gordan, 95 Cal. 374,30 P. 561. In that case, an action for divorce, the custody of the child of the marriage had been awarded to the grandmother, and a further order was made that the father pay to the grandmother a monthly allowance for the support of the child. It was argued that the order was void because it amounted to a judgment in favor of a stranger to the action, but the court held that it was only an order for the payment of money to an agent or officer of the court, charged with the duty of carrying its decree into effect.

Counsel cite a decision of this court, Owens v. Owens, 20 Ohio App. 518, 152 N.E. 767, but the order in that case is not parallel to the one in the case at bar, for in that case the wife, to whom the award was made, was directed to place $50,000 in trust for the benefit of the minor child.

Under the broad language of the section of the General Code, and the authority of Ex parte Gordan, cited supra, this court is of the opinion that the order is valid, and it will therefore be affirmed.

Judgment affirmed.

WILLIAMS and LLOYD, JJ., concur.