Ham, Charles M.

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NOTESthe putative father, in case the child is alive at the adjudication, tosupport only from that date. It is very unlikely that it was intendedto thus place a premium on the ability of the accused to delay thecommencement of the action or the adjudication thereof. Sincesupport of the bastard child by the reputed father until it is eighteenyears old is the essence of the bastardy proceeding, it seems unwise,in the light of what has been discussed above, for the court to im-pose such limitation upon this obligation.M. D. D.POWER OF COURT TO 'MODIFY DECREE FOR SUPPORTWHICH I NCORPORA.TES AGREEMENT OF PARTIESThe court incorporated into a divorce decree the principal pro-visions of a separation agreement, providing for a property settle-ment and for specified monthly payments by the father for the sup-port of his minor child. Subsequently the father moved the court toater the decree so as to reduce the amount payable for support, onthe ground of changed conditions. Held, that the court had no au-thority to reduce the amount ordered in the decree, as to do so wouldbe to impair the obligation of a contract.'In the absence of such a coitract between the spouses, it is gen-erally acknowledged that a court of equity may, upon proper allega-tions of the changed conditions and circumstances of the parties,modify the decree, either by increasing or decreasing the allowance.-In the holding in the principal case. the Supreme Court of Ohiowent against the great weight of authority in Anerica,^ but was notI Tlli v. T Ul1 . 13; Ohij , St. l,7. Ohio Par May 5, 1941).Monahan v. Mvnahan, 14 Ohio App. 116 (1921); Connolly v. Connolly, 16 Ohio App.'12 (1922); Olney v. Watts, 43 Ohio St. 499, 3 N. E. 354 (1885); 3feissner v. Meissner,11 Ohio C. C. 1, 5 Ohio C. D. 305 (I95); Baker v. Baker, 4 Ohio App. 170, 21 OhioC. C. (N.S.) 590. 60 V. L. Bull. 25 (1915); Smcdley v. State, 95 Ohio St. 141, 115N. E. 1 22 (1916); Sager v. Sager, 5 Ohio App. 489, 26 Ohio C. C. (N.S.) 522, 37 Ohiot-. C. 559 (1916). The rule has been recognized in Clough v. Long, 8 Ohio App. 420, 28ohio C. A. 423, 40 Ohio C. C. 185, 63 W. L. Bull. 205 (1918); Garver v. Garver, 102Ohio St. 443, 133 X. E. 551 (1921). See annotation in 71 A. L. R. 723, and cases citedr in.8 Pryor v. Pryor, 88 Ark. 302, 129 Am. St. Rep. 102, 114 S. W. 700 (1908); HerrickHerrick, 319 Ill. 14f,, 149 N. E. 820 (1925); Maginnis v. 'Maginnis, 323 III. 113, 153N. E. 654 (1926); Langrall v. Langrall, 145 Md. 340, 125 Atl. 695, 37 A. L. R. 437(1924); Aldrich v. Aldrich, 166 lich. 248, 141 N, W. 542 (1911); Kelly v. Kelly, 194Mich. 94, 160 N. W. 397 (1916); Warren v. Warren, 116 Minn. 458, 133 N. W. 1009(1912); Connttt v. Connett, 81 Neb. 777, 116 N. IV. 658 (1908); Wallace v. Wallace,74 N. H. 256, 67 Atl. 580 (1907); Le Beau v. Le Beau, 80 N. H. 139, 114 At]. 28(1921). For other authorities and statement of the general rule see annotations in 58A I, R. 63o and 1Wo A. L. R. 10, '.112 LAW JOURNAL -DECEMBER, 1941inconsistent with the previous views taken by the Ohio courts.! Thedecision is open to criticism on two points, both points being recog-nized by Judge Zimmerman in his dissenting opinion:(I.) The holding ignores the proposition that the rights arisefrom the decree itself, as to which the agreement is merely evidence.5"Such an agreement becomes merged into the decree and therebyloses its contractural nature at least to the extent that the court haspower to modify the decree when changed circumstances so justify."'That the provision for support is made part of the court's order byagreement of the parties adds not a whit to the force and effect ofthe decree,' nor divests the court of its right later to alter the decree.'This point was mentioned by judge Zimmerman in the closing linesof his opinion.! A decree for alimony does not depend upon theagreement, which is merely helpful to the court in deciding what theparties thought adequate and just, and which may in fact be ignoredaltogether." This problem might be avoided if the trial court refusedto incorporate the agreement but included the terms of the agreementin its decree, without any reference to the contract itself.(2.) A distinction must be drawn between an order for alimonyand one for the support of a minor child or children. The jurisdic-tion of the court over the persons of minor children of divorcedparties is continuing, even with no express reservation in the decreeitself.' Therefore, an allowance for the support of children may al-ways be modified by the court because of changed conditions. Eventhough the decree for the support of such children be based on anagreement, the Ohio court does not hesitate to increase the amount ofsupport money, ignoring the fact that this is just as much an impair-ment of contract rights as a decrease would be, on the ground ofpublic policy and to protect the interests of the children. " Might it4Law v. Law, 64 0. S. 369, 60 N. E. 560 (1901); Clough v. Long, 8 Ohio App. 420(1918); Kettenring v. Kettenring, 29 Ohio App. 62, 163 N. E. 43 (1928); Ferger v.Ferger, 46 Ohio App. 558, 189 N. E. 665 (1934), discussed in 2 0. S. L. 3. 49; Campbellv. Campbell, 46 Ohio App. 197, 188 N. E. 300 (1933).5See Wallace v. Wallace, 74 N. H. 256, 260, 67 AtI. 580 (1907).O Gardner, J., in Worthington v. Worthington, 224 Ala. 237, 238, 139 So. 334 (1932).errick v. Herrick, 319 Ill. 146, 149 N. E. 820 (1925).8 Southworth v. Treadwell, 168 Mass. 511, 47 N. E. 93 (1897).'"In passing it may be appropriate to note that we are not here concerned with iherights of the parties under the agreement itself as an independent instrument in anotherand different kind of action." 138 Ohio St. 187, 202."Wallace v. Wallace, 74 N. H. 256, 67 Atl. 580 (1907)."Corbett v. Corbett, 123 Ohio St. 76, 174 N. E. 10 (1930).2Connolly v. Connolly, 16 Ohio App. 92 (1922);Corbett v. Corbett, 123 Ohio St. 76, 174 N. E. 10 (1930)."3 Campbell v. Campbell, 46 Ohio App. 197, 188 N. E. 300 (1933).NO [ESnot frequently be in accord with sound public policy, as well as tothe best interests of the minor children, to reduce the burden of theone liable for the support when it becomes apparent that to deny suchreduction would be to work undue hardship on the father? "Thereis no virtue in killing the goose which laid the golden eggs.""4C. M. H.DESCENT AND DISTRIBUTIONoHio GENErAL CODE SECTION 10512-19-RIGHT OF ANADOPTED CHILD TO INHERIT THROUGH ITS ADOPTIVEPARENTLena Post died intestate, survived by two brothers and an adoptedson of her deceased sister. Upon a petition by her administrator todetermine the heirs of the estate, the Probate Court excluded theadopted child as an heir. On appeal the Court of Appeals of Cuya-hoga county reversed the Probate Court and held that the statute4 descent and distribution, Ohio General Code, Section 10503-4 (6),hen construed in connection with the adoption statute, Ohio Gen-eral Code, Section 10512-19, permits an adopted child to inherit notonly from but also through its adoptive parent. White, Adm., v.Meye'r, 66 Ohio App. 549, 33 Ohio L. Abs. 151 (1940).The principal case is the most authoritative direct holding re-ported since the adoption statute was amended in 1932. ' In arrivingat its decision the court disposes of a line of Supreme Court casesto the contrary, by pointing out that they were all decided before the1932 amendment was added to the adoption statute There are notmany reported cases interpreting the effect of this amendment. Inreading them one denotes a tendency on the part of the courts toadhere to the rule established by the outmoded Supreme Court de-I2 Lloyd, J., dissenting, in Campbell v. Campbell, 46 Ohio App. 197. See also dis--trting opinion of Zimmerman, J., in 138 Ohio St. 187, 20ot.1Sec Note (1940) 7 Ontio Sr. r L. J. 441, where the previous Ohio cases are dis-cm-od.Albright v. Albright, 116 Ohio St. 668, 157 N. E. 760 (1927); Phillips v. McConica,39 Ohio St. 1, 51 N. E. 445 (1S3); Quigley v. Mitchell, 41 Ohio St. 375 (1884); Upsonv, Noble, 35 Ohio St. 655 (180).3General Code, Section 10512-19, Effective Jan. 1, 1932, replaced former Section>n630, and added the following words: "but shall be capable of inheriting property e-x-pe-:ly limited by will or by operation of law to the child or children, heir or heirs atlaw, or ncxt of kin, of the adopting parept or parents, or to a class including any of theforeyeing."

Power of Court to Modify Decree for Support Which Incorporates Agreement of Parties

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Power of Court to Modify Decree for Support Which Incorporates Agreement of Parties

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