Clark v. Clark

The action below was twice tried — the first trial resulting in a disagreement of the jury, and the second in a verdict for the plaintiff below, upon which judgment was entered; and the present proceedings are to reverse said judgment for errors alleged.

The facts, in brief, as appear from the record, are these; The parties were married in 1879, and after the birth of three children, to-wit, in 1884, they became separated and thereafter lived apart. The testimony was conflicting as to whose initiative was the cause of separation, but the verdict may be said to imply the husband’s fault in this regard; and there is no charge of error as to the action of the jury upon the weight of evidence. Nor do we, upon a careful reading of the record, perceive any error of the court in giving or refusing to give the special charges asked, nor in the general charge; nor in other actions of the court as to which errors are charged.

The principal contest in the argument here arises upon divorce proceedings resulting in a decree of divorce granted by the Kentucky courts upon the petition of' the husband. It is claimed that this is for the “aggression” of the wife, and that in consequence she can not recover under the Ohio rule, which is claimed in substance to be that the only circumstances under which the mother can recover from the *224father money expended in rearing a child, is when she is divorced for his aggression and the custody of the child is awarded to her. The cases of Pretzinger v. Pretzinger, 54 O. S., 452, and Fulton v. Fulton, 52 O. S., 228, are cited in support of this contention. But these authorities apply to relations existing after divorce and not before.

The syllabus of the Pretzinger case shows its inapplicability to the case in hand, viz.:

“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 her the care and nurture of the child, etc.”

In the case at bar the parties separated in 1884; and whatever the cause, it is clear from the testimony that the husband made no definite effort to provide a home for his family, nor did he offer to relieve the mother of the burden of nurturing and educating the younger children who remained with her. The boy in question ( Stewart), who was a baby in .1884, began earning wages in 1899, at the age of fourteen and a half years. In January, 1900, the divorce was granted on the husband's petition, under a law of Kentucky making a separation of five years a sufficient cause. The decree assigns no cause and makes no provision for alimony or for the children. Under such circumstances “aggression” can not be inferred as a matter affecting the rights of the children. But be that as it may, prior to 1900 there was a period of about fifteen years during which the husband contributed nothing to the support of either his wife or the child. The amount awarded by the jury averages about two dollars and sixty cents a week for the period of the child’s life prior to the earning of wages and prior to the divorce of the parents.

The Fulton case presents an application of the same principle adopted in the Pretzinger case. Both cases rest upon the relations of parents to children after a divorce, and have no application to relations preceding that event.

The obligation of the husband to support his family while *225the marriage subsists is inherent in that relation. The dissensions of parents do not release the obligation of the father to his children, although the helpless dependence of a child may require the mother’s custody rather than that of the father when parents live apart. If he choose to accept the continuance of such a condition as years go by, and makes no effort to assert his more direct responsibility, he may waive the right to the comfort of the society of the child and still be liable for support so long as the necessity therefor exists.

We find no error in the present case, and the judgment must be affirmed.