
    Harker v. Wolff.
    (Decided April 27, 1931.)
    
      Mr. Joseph Sharts, for plaintiff in error.
    
      Mr. Wm. A. Swcmey and Mr. Otterbein Creager, for defendant in error.
   Hornbeck, J.

Plaintiff in error, Henry K. Harker, instituted action in the municipal court of the city of Dayton against the defendant in error, Carl M. Wolff, for medical services rendered to a minor daughter of the defendant. The trial court entered judgment for the defendant. Error was prosecuted to the common pleas court where the action of the municipal court was affirmed. From the judgment of the' common pleas court error is prosecuted to this court.

The facts in this case are, briefly, that in 1920, in a divorce action wherein the wife was the plaintiff and the husband was the defendant, a decree of divorce was entered for the aggression of the defendant on the ground of extreme cruelty, and the care, custody and control of the two minor children of the parties were awarded to the mother, and the following provision made for the maintenance and support of the minor children: “And that the defendant pay the plaintiff for the maintenance and support the sum of $7.00 per week. First payment due and payable Saturda.y, May 29, 1920, and that said payments be made to the Montgomery County Humane Society.”

The record discloses that the defendant has observed and complied with the order of the court requiring the payment of $7 per week. From October, 1926, to February 4, 1928, the plaintiff provided certain professional medical services for a daughter, one of the minor children mentioned in the divorce decree. The total charge therefor amounted to $250. This account was the subject of the action against the defendant. There is no claim that the father, the defendant, knew of the rendition of the medical services for his daughter until after they had been performed, or that he expressly agreed to pay for them.

We thus have the narrow law question whether or not compliance with the decree of the trial court absolved the father, the defendant, from any further liability for maintenance and .support of his minor child. Both the trial court and the common pleas court so held. With their determination we concur.

In our judgment the case is controlled by statute. Two sections are pertinent. The general obligation of parents is defined in Section 7997, General Code: “The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able.”

The power of the court in divorce actions where children are involved is found in Section 11987, General Code: “The granting of a divorce and dissolution of the marriage in no wise shall affect the legitimacy of children of the parties thereto. The court shall make such order for the disposition, care and maintenance of the children, if any, as is just. ’ ’

Acting with the knowledge of the obligation of the father as prescribed in Section 7997, General Code, and under the power vested in it by Section 11987, the court in the divorce case determined that $7 per week was a just and proper sum for the father to pay for the care and maintenance of his minor children. In so doing the court fixed the minimum and maximum which the father was required to pay to meet his legal obligation to support his children.

In the absence of an express promise on his part, or circumstances from which such promise could be clearly inferred, he cannot be held for any further obligation for care and maintenance of his minor children.

Our attention has been directed to several cases touching the general subject-matter here under consideration. Our decision in no wise conflicts with the adjudication in any of these cases. Pretzinger v. Pretzinger, 45 Ohio St., 452, 15 N. E., 471, 4 Am. St. Rep., 542, was predicated upon a state of facts whereon the court found at page 458 [15 N. E., 473, 4 Am. St. Rep., 542]: “The court decreed an allowance to her [the mother] as alimony, but it does not appear that any allowance was made to compensate her for the expense of her son’s maintenance.” And in the syllabus it is stated: The decree carried “no provision for the child’s support.”

In Fulton v. Fulton, 52 Ohio St., 229, 39 N. E., 729, 29 L. R. A., 678, 49 Am. St. Rep., 720, the action was instituted by the wife to recover for necessary provisions for their children, but it will be noted that in that case the decree had been granted for the aggression of the wife, coupled with the fact that no mention was made concerning support money for the children.

Without further comment on the other cases cited by counsel for plaintiff, Elem v. State, 5 Ohio App., 12, and Burgoyne v. Smith, 27 O. D. (N. P.), 56, 19 N. P. (N. S.), 75, suffice to say that neither of them holds that a father is obliged to pay a greater sum for support for his children than that fixed by the divorce decree where the court has expressly considered and adjudged the amount he shall pay for such support.

The question is discussed in 19 Corpus Juris, at page 353, where it is stated that: ‘ ‘ Cases concerning the support of children after divorce of the parents may be divided into three classes: First, where the decree is silent as to both the custody and the maintenance of the child; second, where the decree provides for the custody of the child but is silent as to its maintenance; and third, where the decree not only provides for the custody but also requires the payment of money for the maintenance of the child.” And, further, it is said, at page 355: “In the third class of cases mentioned above, where * * * by the decree itself, * * * maintenance of the chil-

dren is provided for, the duty of support is upon him or her on whom the decree places it. The court may impose the entire obligation to support and maintain the minor child on either the father or the mother.” We are of opinion that the common pleas court committed no error in affirming the judgment of the municipal court.

Judgment of the common pleas court affirmed.

Allread, P. J., and Ktjnkle, J., concur.  