Pretzinger v. Pretzinger

Decision Date13 December 1887
Citation45 Ohio St. 452,15 N.E. 471
CourtOhio Supreme Court

Error to circuit court, Montgomery county.

The original action was commenced in February, 1881, in the court of common pleas of Montgomery county, by Izora Pretzinger the defendant in error, against Jacob Pretzinger, the plaintiff in error. The petition reads as follows: The plaintiff, Izora Pretzinger, for her petition against the defendant, Jacob Pretzinger, says that on or about the 26th day of October, A. D. 1865, she was married to the defendant that there was issue of said marriage a son, Albert J Pretzinger, who still lives, and is now fourteen years of age; that the January term of the court of common pleas in and for the county of Darke, in the state of Ohio, A. D 1875, such proceedings were had by said court in a certain action for divorce therein pending, in which action said plaintiff herein was plaintiff, and said defendant herein was defendant, that said plaintiff was, on account of the misconduct and ill treatment and neglect of said defendant by the judgment of said court of common pleas, divorced from said defendant, and awarded ‘ the custody, nurture, education, and care of said minor child,’ Albert J. Pretzinger. Plaintiff further says that, ever since said decree of divorce was entered, said plaintiff and defendant have lived separate and apart, and said Albert J. Pretzinger, son of the said defendant, has been boarded and clothed and cared for by the plaintiff; and that such boarding, clothing, care, and attention so furnished said son of the defendant by the plaintiff were necessary and appropriate to his comfort and condition in life, and were of the value of not less than two hundred and fifty-eight dollars per year. Said plaintiff further says that, at the time said decree of divorce aforesaid was granted, said defendant herein was insolvent, but that he has become and now is solvent, and well able to support his said son. Plaintiff says that there is due and owing her from the defendant for said boarding, clothing, and care, a specific account of which is hereto attached, marked ‘ Exhibit A,’ the sum of $1,548.00 and interest. Wherefore said plaintiff prays judgment against said defendant,' etc. A demurrer to the petition was sustained, and judgment was rendered for the defendant. The district court reversed the judgment, and remanded the cause to the court of common pleas for further proceedings. The defendant thereupon filed an answer, in which he alleges ‘ that plaintiff in said cause, in Darke county common pleas court, asked that the care, custody, and nurture of their said child be awarded to her, and that reasonable alimony be decreed her for the support of herself and their said child. That on the final hearing thereof the court decreed to the said plaintiff a divorce on the grounds of gross neglect of duty, and for no other cause; and he denies that said divorce was granted on account of ill treatment of plaintiff by this defendant. That the said court further decreed to plaintiff the care and custody of their said child at her special request, and against the wishes and requests of this defendant, and until the further order of said court, and decreed permanent alimony in the sum of seventy-five dollars, in addition to the sum of fifty dollars in said cause allowed as temporary alimony, which said court found to be a reasonable sum for the support of herself and said child, as prayed for in her said petition; and that this plaintiff then and there appeared in open court, and agreed to accept said sum, and did then and there accept said sum in full satisfaction of all alimony that she was or might be entitled to in the premises.’ The plaintiff demurred to the answer; the demurrer was overruled, and exception taken. The plaintiff filed a reply, in which she says ‘ that when she was divorced from said defendant, as in said petition stated, she understood that there was allowed to her as alimony in said cause the sum of seventy-five dollars. If, in addition thereto, fifty dollars was allowed to her therein, she does not know anything about it, except what is stated in said answer. She denies that said court of common pleas of Darke county, Ohio, in that case allowed anything whatever for the support of their said child, A. J. Pretzinger. She denies that said court found said sum of $75.00 as allowed to her, or any other sum that may have been allowed in said case, to be a reasonable sum for the support of herself and her said child, as in said answer stated. She denies that she then and there appeared in open court and accepted ‘ said sum in full satisfaction for all alimony that she was or might be entitled to in the premises,’ as stated in said answer. Plaintiff denies that in said proceedings for divorce she asked anything for the support of their said child, and denies that said court ever allowed her anything for his support, nurture, or maintenance.' Neither party requiring a jury, the cause was submitted to the court on the issues joined and the evidence, and the court found the issues for the plaintiff, and rendered judgment accordingly. The defendant filed a motion to vacate and set aside the judgment, and for a new trial- First , because the judgment was contrary to law; second , because the judgment was contrary to the evidence; third , because of other errors apparent on the record. This motion was overruled, and exception taken to the ruling. No exceptions were taken by the defendant on the trial to the court, and no bill of exceptions was taken embodying any of the evidence. The circuit court, on petition in error by the defendant, affirmed the judgment of the court of common pleas; and this proceeding is prosecuted to reverse the judgment of the circuit court.

Obligation of father to provide for support of minor child is not impaired by decree divorcing wife a vinculo, on account of husband's misconduct, and giving her custody, care and nurture of child, and allowing her sum as alimony, but with no provision for child's support; and wife may sue father for compensation, and need not do so in court granting divorce.

Syllabus by the Court

The obligation of the father to provide reasonably for the support of his 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 of money as alimony, but with no provision for the child's support.

The mother may recover a reasonable compensation from the father for necessaries furnished by her to the child after such decree, and may maintain an original action for such compensation against the father in a court other than that in which the divorce was granted.

H. H. Cole and W. Belville , for in error.

Craighead & Craighead , for defendant in error.

DICKMAN, J., (after stating the facts as above .)

Issues of fact were joined between the parties, and, upon submission to the court, they were found for the defendant in error; but no exceptions were taken on the trial, and the record contains no bill of exceptions embodying the evidence. The only questions before us for consideration are such as may arise upon the original petition and subsequent pleadings. It is contended in behalf of Jacob Pretzinger that the original petition did not state facts sufficient to create a liability on his part, and that the court of common pleas should have entered up judgment in his favor, on the pleadings. Izora Pretzinger was divorced from her husband by reason of his misconduct, and his ill treatment and neglect of her; and was, in consequence awarded the custody, nurture, education, and care of their minor child, then about eight years of age. The court decreed an allowance to her as alimony, but it does not appear that any allowance was made to compensate her for the expense of her son's maintenance. For several years after the granting of the divorce, she furnished to her son such boarding, clothing, care, and attention as were necessary and appropriate to his comfort and condition in life. When the divorce was granted the father was insolvent, but at the rendition of the judgment in the case at bar he was solvent, and able to support his son. The duty of the father to provide reasonably for the maintenance of his minor children, if he be of ability, is a principle of natural law. And he is under obligations to support them, not only by the laws of nature, but by the laws of the land. As said by Chancellor Kent: ‘ The wants and weaknesses of children render it necessary that some person maintains them, and the voice of nature has pointed out the parent as the most fit and proper person.’ 2 Comm. 189. And see Trustees v. Trustees , 3 Ohio 100; Edwards v. Davis , 16 Johns. 281. This natural duty is not to be evaded by the husband's so conducting himself as to render it necessary to dissolve the bonds of matrimony, and give to the mother the custody and...

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