
    Fulton v. Fulton.
    
      Divorce — Children in custody of wife — Necessaries for children— When wife cannot recover against husband for maintenance of children.
    
    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.. Rrete-inger-^-.Prelzinger, 45"Ohio*St., .452,-distinguished.
    (Decided February 5, 1895.)
    
      Error to the Circuit Court of 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 fifteen hundred dollars alimony, and awarded the custody of two small children, the fruit of the mari-iage, 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 eighteen months. ' By this action she soug’ht to recover against the father the sum of $390, for boarding the children-seventy-eig'ht weeks, at the rate of two and óne-half dollars 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 williiig, 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 recoverd 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. ■ • ■ • • '
    
      
      W. B. Higby and W. A. Babcock, for plaintiff in error.
    The proposition which the court submitted to the jury and which must have largely influenced them in arriving at a verdict, to wit: that it makes no difference whether it was done with the. defend-. ant’s consent or not, or at his instance and request, plaintiff’s right to recover is not founded in the defendant’s promise to. pay, either expressed or implied, but upon his legal duty to provide for his children. We recognize the duty of the parent to provide for and maintain its offspring. And we recognize the right of the child to pledge the faith and credit of the parent for its support whenever the parent is unfit, unable or neglects and refuses so to do. This is the promise implied by the natural obligation of the case. 10 Barb. (N. Y.), 483; Raymond v. Loyl, 25. Eng. Com. Law Rep., 400; Chillcott v. Trimble, 13 Barb. (N. Y.), 502; Baldwin v. Foster, 138 Mass., 449.
    It is only when a man abandons his child and casts it upon the public that he becomes liable for its support. Fitler v. Fitler, 33 Pa. St., 57.
    After divorce the relations of the husband and wife are as that of third persons, or rather of single persons. 29 Barb. (N. Y.), 124; Pretzinger v. Pretzinger, 45 Ohio St., 460; Stanton v. Willson, 3 Day (Conn.), 37.
    The father being ready, willing and able to support his. minor children and there being no decree of any court of competent jurisdiction deciding" that he was an improper person to sustain such relation and having" by the consent of the mother the ■ custody of. the children in ■ his own home and they being removed against his protest, we insist that he is no longer liable for their maintenance and support, even though • furnished by the mother or his former wife. Finch v. Finch, 22 Conn., 411; Johnston v. Onsted, 74 Mich., 437; Husband v. Husband, 67 Ind., 583; 29 Barb. (N. Y.), 124; Harris v. Harris, 5 Kan., 46; Hancock v. Merick, 10 Cush., 41; Fitler v. Fitler, 33 Pa. Stat., 50; Baldwin v. Foster, 138 Mass., 449; Brow v. Brightmen, 136 Mass., 187.
    We insist that whether there was an agreement or not that if the amount paid and awarded by the court was in the estimation of said court sufficient for the purposes named and that this was so, is evident from the admitted discussion as to the future welfare and support of the children had between the parties in the presence of the court, then this plaintiff in error was absolved from all future obligation. Harris v. Harris, 5 Kan., 47; Bishop on Mar. and Div. Sec., 401, 552, 556.
    The defendant in error has undertaken to plant his case upon the decision of this court in the case of Pretzinger v. Pretzinger, 45 Ohio St., 452, with which we are not at war, for it clearly announces the doctrine that where by the aggression of the father a competent court has decided him to be unfit to have the care, custody and society of his minor children they shall carry with them into the home of a stranger, and such is the divorced wife, the right to pledge his credit for all the things necessary to their welfare during such minority.
    
      L. A. Willson, for defendant in error.
    It is admitted that in this case, the court of common pleas, for good cause, had decreed the custody of the children to the defendant in error.
    The answer of the defendant in error in the divorce suit avers: “William Fulton is an improper person to have the care, custody, education or control of said minor children, or either of them.” In decreeing the children to Rebecca Fulton, the court must have found this issue in- her favor. If so, then so far as concerns the children, the case is on all fours with the Pretzinger case, 45 Ohio St., 452. While the parties were divorced for the aggressions of the defendant in error, it is not true that the minor children were separated from the plaintiff and given to the defendant on account of defendant’s aggressions.
    ■ The father can never be divorced from his children. It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents, to which they are not parties; or to enable the father to convert his own misconduct into a shield against parental liability. It is urged that the father is released from obligation to maintain his infant children, when deprived of their society and services against his will. But if voluntary misconduct on his own part leads to the deprivation, he is himself responsible, and not the court which intervenes for the protection of his children. And if the father, as against a stranger, cannot secure liability for necessaries furnished to his minor' children, though remaining with their mother after the divorce, the mother will not be barred of an action against her former husband, for the expense of maintaining the children. After a dissolution of the marriag’e relation by divorce, the parties are henceforth single persons, to all intents and purposes. All marital duties and obligations to each other are at an end, and they become as strangers to each other.
    
      Upon the establishment of such, new relations, a promise may be implied on the part of the father, to pay the mother, as well as a third person who has supplied the necessary wants of his infant child. Pretzinger v. Pretzinger, 45 Ohio St., 452; Stanton v. Willson, 3 Day., 37; Finch v. Finch, 22 Conn., 421; Bishop on Marriage and Divorce, last edition, New York, 1210.
   Bradbury, J.

The defendant in error was divorced from the plaintiff in error in a suit brought by him for her aggression. She. was awarded $1,500.00 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:

“It is conceded that at the September term, '1886, the defendant obtained a decree of divorce from the plaintiff for cruelty to him; that the court gave her alimony in the sum of $1,500.00 and the custody of the children till its further order, and that she has ever since had the children and boarded and clothed them. This easts upon the defendant the legal obligation to pay her what that board and clothing is reasonably worth.
“It makes no difference whether it was done with the defendant’s consent .or not, or. at his instance and request. Plaintiff’s right to recover is not founded in the defendant’s promise to pay, either expressed or implied, but upon his legal duty to provide for his children; and the order of the court giving her. the custody of the children and the caring for them.thereafter by the plaintiff, makes the defendant liable to pay the plaintiff what that board and clothing is fairly and reasonably worth.”

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. 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 rig'hts 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 ease, the rig-ht 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. Dick-man, J., saying in reference to the natural duty resting on parents to support their children, that: “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. * * * It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents, * * * or to enable the father to convert his own misconduct into a shield against parental liability.” Pretzinger v. Pretzinger, 45 Ohio St., 458. 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 the custody of her minor children.” Ib., 459.

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, that 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 their support, in the absence of a request or promise by him in the premises.

The contest is between the parents. By the law of nature, the responsibility of each for the birth of children is equal; the moral obligation of nurture, protection and reasonable support bears upon each according to his or her capacity to afford it. Schouler, in referring to this obligation, says: “This is said to rest upon a principle of common law; but perhaps it may be more reasonably referred to the implied obligation which parents assume in entering into wedlock and bringing children into the world.” Schouler, Dom. Rel.

The common law in an earlier stage of its development, stripped the wife of her personal property, transferred to the husband the income of her real estate, vested in him the right to her earnings, denied to her the power of contracting, and merged her legal entity into his; and to compensate her for these disabilities, it absolved her from nearly every legal obligation and duty, including that of maintaining her children. Nor had she any legal control over them or right to their services. Even her widowhood did not re store this control or right, and this harsh doctrine was at one time recognized and applied by court of deservedly high authority in this country. Thus, as late as 1812, it was held in Commonwealth v. Murray, 4 Binney, 487, in respect of a widowed mother, that “an infant owes reverence and respect to his mother, but she has no legal authority over him, nor any legal right to his services.”

Within the last half century, however, the harsh rules of the.common law respecting the property and domestic rights of married women have gradually yielded to more enlightened and humane notions, and consequently they have been greatly modified and ameliorated. The modifications and ameliorations which affect her property rights are chiefly' the result of legislation, but those affecting her domestic relations aré as much due to those enlightened views, which led to a more humane application of the rules of common law to that relation, as to direct legislative action. And in many instances, legislative action enlarging- her property and personal rights, have gradually led to the imposition of correlative duties, by the application of recognized principles of. the common law.

The husband and father while living with his family is its head, is entitled to the services of his minor children and is liable for théir reasonable support. Revised Statutes, sections 3108, 3109, 3110, 3113; Sharp v. Cropsey, 11 Barb. (N. Y.), 224.

Where, however, the husband is dead, the modern and better rule is that the mother is the head of the family and entitled to the' earnings and obedience of her minor children. Commissioners v. Hamilton, 60 Md., 340; State, for use of Coughlan, v. B. & O. R. R. Co., 24 Md., 84; O. & M. R. R. Co. v. Tindall, 13 Ind., 366; Furman v. Van Sise, 56 N. Y., 435; Matthewson v. Perry, 37 Conn., 435; Hammond v. Corbett et al., 50 N. H., 501; Gray v. Durland, 50 Barb., 100.

And whenever the mother is entitled to the obedience and services of her minor children,- it would seem' to follow, necessarily, that she should maintain them. Harsh and anomalous, indeed, a rule of law must be that would give the earnings and custody of a minor child to a parent who was under no' reciprocal obligation of maintenance. The duty of maintenance by the mother is asserted by Schouler, Domestic Relations, section 293; Mowbry v. Mowbry, 64 Ill.,383; In Dedham v. Natick, 16 Mass., 140, the court say: “The mother, after the death- of the father, remains the head of the family. She has the like control over the minor children, as he had when living. She is bound to support them, if of sufficient ability; and they cannot, by law, be separated from her? ’

The cases, indeed, are rare, where a mother, having the ability, has declined to administer to the wants of her minor child. The law of nature is usually strong enough to secure this, and an appeal to municipal law is therefore seldom necessary. But, if a widowed mother with ample possessions should decline to administer to the necessities of her destitute minor child, a rule of law that would allow this, and suffer her to abandon it to private or public charity, would be a reproach to any system of jurisprudence.

If she is not bound to maintain her child, then she should not be permitted to keep it in subjection to her authority, or receive the wages of its labor. The right to keep her minor children together under her roof and to control their persons, implies the obligation to feed and clothe them; and the great weight of modern authority, as well as of reason, clothes her with those rights. - It may be that the authorities do not speak with equal emphasis upon the question of her duty of support, as they do in reference to her right to the custody and services of her children, but this should be attributed to the want of an occasion, and not to the existence of any rule of law by which she can be vested with the control without the duty of maintaining her minor children.

Where a divorce a vinculo, is decreed, the bonds of matrimony are dissolved, and the former husband and wife become as strangers to each other, and the former wife is relieved from all the disabilities and duties incident to coverture. If children were born of the marriage, the paternal relation remains, and the duties pertaining to it continue. The primary obligation of maintaining .the children was on the husband and father — the foundation of this superior obligation rests upon the general fact that he is most capable of discharging it. His right, however, is to maintain his children in his own way and at his own fireside, where he can have the comfort of their society and the aid of their services. If, by his own misconduct the family relation is destroyed, and the welfare of the children render it necessary that they should be placed in the custody of the mother, he has no just ground to complain if he is compelled to maintain them in her home. However, even under these circumstances, if the mother has an ample fortune, and the resources of the father are comparatively limited, justice might require a modification of a rule founded upon the assumption of conditions, which in the particular case did not exist.

And although the separation and divorce were caused by the misconduct of the mother, it may nevertheless be true that the obligation of the father to reasonably provide for his children will follow them into the custody of the delinquent mother, when circumstances require them to be placed in her custody. If, however, under such circumstances, it does so follow them, the reason and limit of this obligation of the father should be found in the necessities of the children. As to them, the natural obligation of protection, nurture and maintenance, press with equal force upon the parents. By the divorce a vinculo, the mother is as completely absolved from the marital relation as she would be by death, and if, in the course of the proceeding which end in an absolute divorce, the, minor children are put under her control, by her J procurement or in response to her wishes, her/ direct obligation towards them so long as she red tains them would seem to be founded upon as sub-j stantial considerations as if she were a widow J Their daily wants must be satisfied. Constant supervision maybe necessary. Can their divorced mother, who has received them into her custody, abandon them in the one case and not in the other ? We think not. By receiving them into her custody she should be held, as to them, to assume the obligations incident to that custody. If, under these circumstances, where her own misconduct has destroyed the family relation, and deprived the father of the custody and society of his chib dren, she has in fact maintained her children, she has no claim, legal or moral, to demand reimbursement from the father. She has simply discharged a duty cast upon her by -the plainest principles of natural justice, for the reason that the necessity for it arose from her own misconduct.

Judgment ■reversed,  