Fulton v. Fulton
| Decision Date | 05 February 1895 |
| Citation | 39 N.E. 729,52 Ohio St. 229 |
| Parties | FULTON v. FULTON. |
| Court | Ohio Supreme Court |
Error to circuit court, Cuyahoga county.
The plaintiff and defendant were at one time husband and wife but had been divorced, on the application of the husband, on account of the extreme cruelty of the wife. In these proceedings the wife was allowed $1,500 alimony, and awarded the custody of two small children, the fruit of the marriage for the maintenance of whom the decree made no provision. The two children continued to reside with their mother, and were maintained by her, from the time the divorce was granted until the commencement of this action in the court of common pleas, a period of about 18 months. By this action she sought to recover against the father the sum of $390, for boarding the two children 78 weeks, at the rate of $2.50 per child per week, and the sum of $56.20 for clothing and medical attendance, etc., furnished to them by her and for which she had paid. The father answered that he had been at all times willing, able, and ready to support the children himself at home, in his own family, but was denied the right by the order of the court in the proceedings for a divorce made necessary by the aggression of the defendant in error; and denies that she cared for and supported the children at his request, but instead avers that she did so against objection and protest. She recovered in the court of common pleas a judgment for the value that the jury set upon the support she had given to the children, which judgment was affirmed by the circuit court. Whereupon proceedings were begun in this court to reverse both judgments. Reversed.
Father is not liable for support for child in custody of mother, in absence of agreement or provision in decree.
Syllabus by the Court
Where a divorce a vinculo has been granted to a husband on account of the aggression of the wife, and the minor children of the parties assigned to the custody of the divorced wife, without an order respecting their maintenance, and while so in her custody she furnished to them necessaries, she cannot recover against her former husband, their father, for her expenditures in this behalf, in the absence of proof of a promise by him to pay for such necessaries, or of a request that they should be furnished to the children. Pretzinger v Pretzinger, 15 N.E. 471, 45 Ohio St. 452, distinguished.
W. B. Higby and W. A. Babcock, for plaintiff in error.
L. A. Willson, for defendant in error.
The defendant in error was divorced from the plaintiff in error in a suit brought by him for her aggression. She was awarded $1,500 for alimony, and two small children, the fruit of the marriage, were by the decree placed in her custody, but no order was made respecting their maintenance. She, living apart from the defendant in error, supported the two children, and the question to be determined is whether she can maintain an action against him for board, clothing, etc which she has furnished to them, in the absence of any proof of a request by him that the support should be provided, or of a promise to pay for it when provided. Upon this subject the court of common pleas charged the jury as follows To this portion of the charge the defendant excepted, and the question in issue between the parties was thus brought into the record. The defendant in error contends that this question is settled in her favor by the case of Pretzinger v. Pretzinger, 45 Ohio St. 452, 15 N.E. 471. In that case this court held that ‘ the obligation of a father to provide reasonably for the support of a minor child, until the latter is in a condition to provide for his own support, is not impaired by a decree which divorces the wife a vinculo, on account of the husband's misconduct, gives to her the custody, care, and nurture of the child, and allows her a sum as alimony, but with no provision for the child's support.’ In that case, as in the one under consideration, no question arose respecting the rights of the child to reasonable support. In both instances the necessaries had already been furnished by the divorced mother, and she was seeking reimbursement from the father. The contention, therefore, related solely to the relative duties of the father and mother of minor children, where the parents are living separate in consequence of a divorce a vinculo, had between them, and the children had been awarded to the custody of the mother. Where separation and divorce result from the misconduct of the husband, the Pretzinger Case, supra, asserts the primary liability of the father, in a contest between him and the mother, and in such case the right of the mother to recover against the father for such reasonable necessaries as she has furnished is established. That case is grounded in the principle that, as the primary liability rests upon the father, he cannot, by his own misconduct, shift it to the mother; Dickman, J., saying in reference to the natural duty resting on parents to support their children that Pretzinger v. Pretzinger, 45 Ohio St. 458, 15 N.E. 471. Again: ‘ There is evidently no satisfactory reason for changing the rule of liability, when, through ill treatment or other breach of marital obligation, the husband renders it necessary for a court of justice to divorce the wife, and commit to her custody her minor children.’ Id., 45 Ohio St. 459, 15 N.E. 471. In the case before the court, however, the wife was the aggressor, and it is this feature by which it is to be distinguished from the Pretzinger Case, supra, for in that case the husband was in fault. It does not necessarily follow that because a father cannot, by his own misconduct, shift from himself to the mother his primary liability to support his minor children, the mother cannot, by her misconduct, produce that result, at least to the extent of denying to her a right to recover against him for expenses she has incurred for necessaries for...
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