With a great reluctance that stems more from the suppression of my feelings of sympathy and compassion than it does from any confusion of the law, I must respectfully dissent. Central to my dissent is the firm belief that my colleagues *Page 518 in the majority have set forth a new corollary to the landmark case of Castle v. Castle (1984), 15 Ohio St.3d 279, 15 OBR 413,473 N.E.2d 803, that has no basis in the law. Accordingly, I am of the opinion that the trial court correctly determined that it lacked jurisdiction to initially impose an order for the support of a young man who was twenty-five years of age at the time of the divorce of his parents, even though he was developmentally and mentally disabled at the time of the divorce.
In Castle, the majority of the Ohio Supreme Court held that a trial court may properly continue or retain its jurisdiction over a minor child beyond the age of majority when that child is a "mentally or physically disabled child." (See the syllabus of the court as set forth in its entirety in the majority opinion.) In order to "retain" or "continue" subject-matter jurisdiction as contemplated and set forth in Castle, it is elementary that a court have jurisdiction over the subject matter in the first instance, for one cannot retain what one does not possess. Accordingly, we must first determine whether the trial court ever had any jurisdiction to impose an order for the support of a child who was twenty-five years of age when the court acquired jurisdiction over his parents.
Here, the appellant and the appellee obtained a divorce on April 24, 1984. The court had jurisdiction over those parties pursuant to R.C. 3105.03. At the time of their divorce, their son James was twenty-five years of age. Castle v. Castle, supra, was decided and released on December 31, 1984. On February 25, 1985, the appellant filed a postdecree motion to establish an order for the support of James.
Appellant avers, and the majority agrees, that the fact that the trial court entrusted the appellant with custody of James opened the jurisdictional door for it to subsequently impose a support order in light of the Castle decision. Alternatively, appellant contends, and again the majority agrees, that since James was never free of any disability, he never obtained the legal age of majority.
I am not persuaded by either argument. While they each may be legitimate reasons to continue the jurisdiction of a court, neither can confer original jurisdiction. In Bailey v. Bailey (1996), 109 Ohio App.3d 569, 572, 672 N.E.2d 747, 749, the court stated:
"In order for the trial court to maintain continuing jurisdiction over the issue of child support, there must have been a minor child either born or conceived prior to the entry of final judgment. * * * See by implication R.C. 3109.05 and 3113.215."
Moreover, it has been noted: "Generally a domestic relations court has no authority to order child support for an adult child over whom it has no *Page 519 jurisdiction, even if the parents of such child fail to contest the exercise of such jurisdiction." O'Connor v. O'Connor (1991),71 Ohio App.3d 541, 544, 594 N.E.2d 1081, 1083, citing Millerv. Miller (1951), 154 Ohio St. 530, 43 O.O. 496, 97 N.E.2d 213. Also, the O'Connor case is additionally significant for its observation:
"This court notes, however, that defendant is correct in asserting that the holding of Castle v. Castle (1984), 15 Ohio St.3d 279, 15 OBR 413, 473 N.E.2d 803, is distinguishable from this case. In Castle, the domestic relations court initially had jurisdiction over the parties' incompetent minor child. The Supreme Court stated that once jurisdiction was properly asserted over the minor child, the domestic relations court retained jurisdiction to provide continuing child support after the child attained majority. Id. at paragraph two of the syllabus. In this case, the domestic relations court never had jurisdiction over Laurie. Thus, the holding of Castle is inapposite." (Emphasis sic.) O'Connor, supra, 71 Ohio App.3d at 544, 594 N.E.2d at 1083.
In addition to the foregoing cases, a review of the following relevant statutes reinforces a conclusion that the domestic relations court lacked the jurisdiction to impose the support order in the case sub judice:
R.C. 3109.01: "All persons of the age of eighteen years or more, who are under no legal disability, are capable of contracting and are of full age for all purposes."
R.C. 3103.03(B): "Notwithstanding section 3109.01 of the Revised Code, the parental duty of support to children, including the duty of a parent to pay support pursuant to a child support order, shall continue beyond the age of majority as long as the child continuously attends on a full-time basis any recognized and accredited high school or a court-issued child support order provides that the duty of support continues beyond the age of majority. Except in cases in which a child support order requires the duty of support to continue for any period after the child reaches age nineteen, the order shall not remain in effect after the child reaches age nineteen."
R.C. 3109.05(E): "Notwithstanding section 3109.01 of the Revised Code, if a court issues a child support order under this section, the order shall remain in effect beyond the child's eighteenth birthday as long as the child continuously attends on a full-time basis any recognized and accredited high school or the order provides that the duty of support of the child continues beyond the child's eighteenth birthday."
From the foregoing authorities, we can logically conclude that the Ohio General Assembly, which is entrusted with the responsibility of establishing the public policy of this state, has not seen fit to amend its child-support provisions to reflect a disabled-child exception to the general rule of emancipation set forth in R.C. 3109.01, except that it refers to thecontinuation of a support obligation or a *Page 520 support order. Despite numerous amendments to R.C. Title 31 since Castle was decided in 1984, none of those amendments confers jurisdiction on a domestic relations court whereby the court could assume initial jurisdiction over a child beyond the age of eighteen years and who is not a full-time high school student.
If the position of the majority is correct, then every domestic relations case in which a child was permanently disabled prior to obtaining the age of eighteen years can now be reopened under the theory that such a child could never be emancipated under R.C.3109.01 and, therefore, the court has continuing jurisdiction to impose a support order at any time during the disability. The Supreme Court of this state has not gone so far, and the legislature has refused to address the issue.
I would affirm the trial court in the belief that neither that court, this court, nor any other court has the power to expand jurisdiction.