
    Kintner, Appellant, v. Kintner, Appellee.
    (No. 3820
    Decided January 22, 1946.)
    
      Mr. W. S. Pealer and Mr. D. Curtis Reed, for appellant.
    
      
      Mr. Roscoe R. W.alcutt and Mr. Kenneth Little, for appellee.
   Wiseman, J.

This matter comes before the court on an appeal on questions of law from an order of the Common Pleas Court of Franklin county, Division of Domestic Relations.

The plaintiff, appellant herein, claims error was committed in that the order entered by the trial court was contrary to law because (1) it required the mother, plaintiff, to contribute to the support of the minor child without any finding that the husband was unable to provide such support, (2) the order constituted a reduction of permanent alimony contained in the separation agreement which was incorporated in the divorce decree, and (3) the order was against the manifest weight of the evidence.

That part of the order which forms the basis of the plaintiff’s complaint is as follows:

“Second, that the plaintiff, Helen Marie Kintner, shall contribute the sum of $10 per month from the effective date of this, order toward the care, support, maintenance and education of said child, by paying said sum of $10 to the defendant through the clerk of this court to reimburse him for the full support of said child furnished by him. The payments to be made by the plaintiff to the defendant as soon as there may be an ability on her part to comply with this order.

“This court orders that said payments herein provided shall be effective and be made as of and from the first day of February, 1945.”

The sole question for the court to determine on all three assignments of error is whether the court could properly make the order above set forth.

The record in this case shows that the plaintiff, the wife, and the defendant, appellee herein, the husband, were granted a divorce on March 11, 1939, and the separation agreement which had been entered into between the parties was approved and carried into the decree. The separation agreement which was ratified and confirmed by the court in the decree provided that the defendant should pay to tjie plaintiff “the sum of $70 per month on the first day of each calendar month commencing April 1, 1939, as permanent alimony and permanent child support as follows: $15 per month for the support of each child until the said child reaches the age of majority, namely, 21 years, being a total amount at the present time in the amount of $45 per month, together with the sum of $25 per month as and for permanent alimony, said amount being payable during the lifetime of the plaintiff or until such time as plaintiff remarries.”

The custody of the children was granted to the plaintiff.

Subsequently, to wit, on December 23, 1943, the custody of the second child was changed from the plaintiff to the defendant and later, to wit, on June 9, 1944, the custody of the youngest child was changed from the plaintiff to the defendant. Later, on March 5,1945, an order was entered placing the youngest child in a private home and fixing the support charge at $10 per week. The order further provided that the plaintiff would be required to make a contribution to the support of this child at the rate of $3 per 'week which amount should be deducted from the $25 per month permanent alimony provided in the divorce decree.

On April 7,1945, the trial court “on its own motion” vacated its former order and set the case for hearing. Testimony was taken at such hearing, the record of which has been examined by this court. The record shows that the defendant had ample funds and earning power to support his children and that the plaintiff had little or no income for the support of herself and lacked the necessary income for the support of her children. The court rendered a written opinion in which it found as follows:

“Yet at this time I cannot find an ability to support on her part or contribute to the support, based on the fact that she only has an income of $25.”

However, the court, under date of August 21, 1945, made the order requiring the plaintiff to pay $10 per month to the defendant to reimburse him for the full support of the child.

Did the court commit reversible error? Section 7997, General Code, provides as follows:

' “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.”

By reason of the provisions of Section 7997, General Code, the husband is primarily liable for the support of his minor children. The liability of the wife is secondary to that of the husband. Before the. court can require the wife to support the minor children it must first find that the husband is unable to do so. In the instant case the testimony shows, and the court so found, that the husband was able to support the child in question and also found that the wife had little or no income except that contributed by the husband as permanent alimony in the amount of $25 per month.

The trial court rested its order on Section 8032, General Code, which is as follows:

“When husband and wife are living separate and apart from each other, or are divorced and the question as to the care, custody and control of the offspring of their marriage is brought before a court of competent jurisdiction in this state, they shall stand upon an equality as to the care, custody and control of such offspring, so far as it relates to their being either father or mother thereof.”

We are of the opinion that the provision of Section 8032, General Code, which seeks to place the father and mother on the basis of equality with respect to the care, custody and control of their offspring, does not relieve a father of his primary obligation to support his minor children as provided by Section 7997, General Code. We jare of the opinion that the provision of Section 8032, General Code, places the father and mother on the basis of equality with respect to their relationship to their offspring, but as between the father and the mother, the father still carries the primary obligation of support. See Quigley v. Murphy, 4 N. P., 1, 5 O. D., 680; Young v. Young, 7 C. C. (N. S.), 419,18 C. D., 179; Mieszkalski v. Mieszkalski, 44 Ohio App., 152, 184 N. E., 709.

The plaintiff also contends that the trial court was without authority to require the plaintiff to contribute to the support of the minor child which contribution operated as a reduction of permanent alimony agreed to between the parties before the divorce and which agreement was ratified and confirmed in the divorce decree and made a part thereof. It is a well established principle of law in Ohio that a separation agreement which is made a part of the decree may be modified at a later date by increasing the amount specified for the support of the children in order that /they may receive adequate support, but with respect to the rights between the parties themselves the provision made in the separation agreement with respect to permanent alimony and which was approved and ratified by the court and made a part of its decree cannot thereafter be modified in the absence of fraud or mistake. Campbell v. Campbell, 46 Ohio App., 197, 188 N. E., 300; Ferger v. Ferger, 46 Ohio App., 558, 189 N. E., 665; Law v. Law, 64 Ohio St., 369, 60 N. E., 560; Tullis v. Tullis, 138 Ohio St., 187, 34 N. E. (2d), 212.

In Tullis v. Tullis, supra, the court, in discussing the effect of the separation agreement being made a part of the decree, on page 190, said:

“The contract of separation between the parties in this case was complete and final as between themselves and likewise final as to the support of their minor child so far as they could make it final under the law. The appellant had a legal right to make a contract with the appellee for her permanent support and for the support of their minor child. She had the right to make such contract for the support of the child, not only in its behalf but in her own behalf to protect herself against her secondary liability under the statute for the support of their child. The consideration for such contract was adequate and complete and the contract was mutually and permanently binding on both parties.”

Again, on page 192, in discussing the authority of the trial court to increase rather than diminish the support allowance of the child, the court said:

“This court has also held that even though such a contract has been made a part of the decree of divorce, yet because of the continuing jurisdiction of the court and because of the demands of public policy, the court may subsequently increase the support allowance for children if changed circumstances require it, since a parent cannot by his own contract relieve himself of the legal obligation to support his minor children.”

Accordingly, this court holds that it was within the province of the trial court to modify its former order with respect to the support allowance of the child, but it had no authority to modify the former order with respect to the rights already fixed between the plaintiff and the defendant regarding permanent alimony. Furthermore, this court holds that the trial court was without authority to require the plaintiff to contribute to the support of the child. For this reason this court holds that the trial court committed reversible error in making the order complained of. The case will be remanded to the trial court for further .proceedings.

Order reversed,.

Hornbeck, P. J., and Miller, J., concur.  