Logan v. Logan

• Decision Date: 07 March 1960
• Citation: 111 Ohio App. 534,170 N.E.2d 922
• Parties: , 13 O.O.2d 364 Dorothy M. LOGAN, Appellant, v. Donald E. LOGAN, Appellee. *
• Court: Ohio Court of Appeals

Page 534

111 Ohio App. 534

170 N.E.2d 922, 13 O.O.2d 364

Dorothy M. LOGAN, Appellant, v. Donald E. LOGAN, Appellee. ^*

Court of Appeals of Ohio, Sixth District, Lucas County.

March 7, 1960.

J. Slater Gibson, Toledo. for appellant.

Cline, Bischoff & Cook, Toledo, for appellee.

FESS, Judge.

Appeal on questions of law from a judgment of the common pleas court, division of domestic relations, Juvenile Branch, finding that there has been a de facto adoption of minor children of defendant-appellee by their stepfather, and that the defendant-appellee as the natural father has thereby been deprived of his parental rights, and ordering that a former order imposing upon the defendant the duty of supporting said children by suspended effective July 20, 1959, until further order of the court.

The mother and father of the two minor children were divorced in 1951. In the divorce judgment, the mother was awarded custody of the two children, then seven and three years old, and the father ordered to pay the nother $90 per month for support of the children. Jurisdiction was reserved to modify the order in any respect and the case was certified to the Juvenile Branch for further proceedings thereunder.

Both parents have since remarried. The father has no children by his second marriage, and the mother has one child born to her second marriage.

On July 20, 1959, the father filed a motion alleging that since the divorce he has fully complied with the support order. He further alleges that since the divorce, the mother married one David Hayes, and that the children have been registered in their respective schools under the name of their stepfather, or Donna Hayes and Janice Hayes, and 'have thus assumed the name of their stepfather, and all the obligations of filial piety incident thereto, thus giving the stepfather the benefits of an adoption de facto of said minor children without the legal consequences of obligation to support said minor children'. Defendant prays for an order modifying the decree and relieving defendant from further obligation of support of said minor children.

On August 28, 1959, the mother countered by filing a motion to increase the amount of the child support on the ground of changed circumstances on the ground that the cost of their maintenance and support had substantially increased since the decree was entered in May, 1951.

The duty of a husband to support his wife and children, as defined in R.C. § 3103.03, is a primary obligation and as long as the husband is able to do so, the proviso in the section that if he is unable to do so, the wife must assist him as far as she is able, does not modify the husband's obligation. Klump v. Klump, 96 Ohio App. 93, 121 N.E.2d 273; Armstrong v. Armstrong, Ohio App., 139 N.E.2d 471.

And the obligation of a father to provide reasonably for the support and maintenance of his minor children until the latter are in condition to provide for themselves is not impaired by a decree of divorce awarding the mother the custody of the children, although silent as to the children's support. Pretzinger v. Pretzinger, 45 Ohio St. 452, 15 N.E. 471; McDaniel v. Rucker, 150 Ohio St. 261, 80 N.E.2d 849. It has been held that where a divorced woman remarries and her first husband contributes to the support of her minor son remaining in her custody, the second husband, who may have placed himself in loco parentis with relation to the boy, who has received the sums so contributed by the father, cannot, in the absence of a contract with the father, after a lapse of five years, maintain an action against the father on a claim then, for the first time, asserted, for a balance...