I concur in the principal opinion, but wish to add several points.
The constitutional power of the state with respect to the custody of minor children rests upon two quite distinct grounds. The first is the determination of custody as between parents, which necessarily arises upon the separation of the parents. Since annulment and divorce grant the right to live separately, and an alimony only action presupposes a separation, thegranting of one of these types of relief gives the state, through its court, the incidental or ancillary authority to determine custody as between the parents. If the annulment, divorce or alimony only action is dismissed (or relief denied), the incidental authority to control custody as between parents no longer exists. The court's authority, if any, must then constitutionally rest upon an adjunct of parens patriae arising under the "police power" of the state.
The parents' right to the custody and control of their children is a personal right and paramount to that of the state. Except where the question of custody is incidental to separation, the parents' right cannot be interfered with or taken away except by a proper exercise of the police power. At present, the statutorily recognized grounds for exercising that type of authority are, in general, that the child is dependent, neglected or delinquent, or, on the other hand, that the parent is not "suitable" or is unfit. As to the children, see Chapter 2151, Revised Code. As to the parents, see, in particular, Sections3109.04 and 3107.06, Revised Code. Any interpretation of Section3105.21, Revised Code, must be made in the light of these substantive principles of constitutional law and in the light of the requirements for procedural due process. *Page 160
Insofar as Sections 3105.21 and 3109.04, Revised Code, authorize the Common Pleas Court, Division of Domestic Relations, to control custody as an incident to annulment, divorce or alimony actions, no such relief was granted in this case. (Assuming, but not deciding, that an action commenced for divorce only can, either with or without amending the petition, be reduced to one for alimony, neither party here requested such limited relief. Compare Hobbs v. Hobbs [1961], 115 Ohio App. 536. ) There is nothing to show that the parties were in fact living separate and apart and that they intended to continue to do so after the denial of a divorce. There is no finding that either or both parents were unfit or not suitable, nor any findings that the children were dependent, neglected or delinquent.
Accordingly, while I agree with the principal opinion that the denial of a divorce here was equivalent to a dismissal of the petitions and therefore that Section 3105.21, Revised Code, did not become applicable, I would also point out that on the findings in the journal entry there was no basis in this case upon which the state of Ohio was entitled to interfere with the custody of the children of these parents.