Opinion
Decided December 19, 1927.
Divorce — Custody of child awarded father — Wife, retaining child, cannot recover from husband for its support, when.
Where, by decree, custody, care, and support of son was awarded to the father, and after the mother's remarriage the son visited her by agreement and was not returned, since she retained him with knowledge that his custody had been awarded the father, presumption is that her support was furnished without expectation of recovery and was as gratuity, and no recovery therefor could be had as against the father.
ERROR: Court of Appeals for Hamilton county.
Mr. James B. Benedict and Mr. Charles C. Benedict, for plaintiff in error.
Mr. M.C. Lykins, for defendant in error.
May 25, 1914, Irene Thompson Mueller, defendant in error here, secured a divorce from Harry Thompson because of his aggression. November 23, 1914, the decree in that case was modified as to the custody of the children. It awarded the custody, care, and support of Clay Thompson, a son 7 years of age, to the father, Harry Thompson. The mother married Mueller, and prior to December, 1915, moved to and was living in Cleveland. At the time last stated, it was arranged that the boy, Clay Thompson, should visit his mother, at her home, with the understanding that he was to return to his father at the end of the holiday vacation period. The boy was not returned; the mother giving as the reason that the boy did not want to return to his father. The father sent a telegram, inquiring whether the boy was coming to him, to which an answer was sent that he was not coming.
October 20, 1925, Mrs. Mueller filed an action in the court of common pleas of Hamilton county, claiming that there was due her from Harry Thompson the sum of $5,340, for work, services, shelter, support, maintenance, nursing, and clothing furnished the minor son of defendant by the plaintiff, the mother, for a period of 534 weeks, from June 20, 1915, to October 5, 1925, at $10 per week.
The answer of Harry Thompson admitted the divorce, and that Clay Thompson was a child of their marriage, but denied generally the other allegations of the petition.
A verdict was returned in favor of the plaintiff, and judgment was entered thereon for $985. This action is prosecuted to reverse that judgment.
The question of law presented is whether the mother can recover from the father of Clay Thompson for the support, care, and maintenance furnished by her for the period stated.
The rule of liability of a father for the support of his minor child under circumstances similar to those set out above is stated in Kimmel v. Dorshimer, 19 Ohio App. 257. In that case the divorce was granted to the husband for the aggression of the wife. The husband was awarded the custody of the minor children. The child Rowena Dorshimer continued to reside with her mother, who, in connection with the stepfather, provided for her support and maintenance, and the mother brought an action to recover $4,210 from the child's father. In the case at bar, Clay Thompson resided with his father until he went to visit his mother, and he was not returned by his mother to the father, nor was the father requested to take him.
In the Kimmel case, the court said, at page 261:
"It is a fundamental principle of law that where, under such circumstances, services have been rendered and support furnished without any expectation of payment the law will not permit of a recovery, for the reason that services rendered and support furnished under such circumstances amount to a gratuity."
The defendant in error relies on the case of Pretzinger v. Pretzinger, 45 Ohio St. 452, 15 N.E. 471, 4 Am. St. Rep., 542. The holding in that case was distinguished and modified in the case of Fulton v. Fulton, 52 Ohio St. 229, 39 N.E. 729, 29 L.R.A., 678, 49 Am. St. Rep., 720, which was followed in Douglass v. Douglass, 22 C.C., 423, 12 C.D., 439, affirmed 64 Ohio St. 605, 61 N.E. 1142. As was pointed out in these cases, the defendant in error in this case at no time requested the court, awarding the custody of the child, Clay Thompson, to his father, to modify its order, nor did she request the court to make any provision for the minor's support. She retained the child and received his services with full knowledge that the custody of the child had been awarded to the father.
The law presumes that the support was furnished without any expectation of recovery, and was furnished as a gratuity.
Numerous errors are assigned for a reversal of the judgment: Refusal to give special charges 1, 2, and 3, requested by the defendant below; error in the admission of certain testimony; and error in the general charge of the court.
The rule being that a party furnishing services and support gratuitously cannot recover in law, it will not be necessary to pass on the assignments of error above stated.
Our conclusion is that under the rule stated in the case of Kimmel v. Dorshimer, supra, the judgment of the court of common pleas is contrary to law, and is therefore reversed and held for naught. This court will enter the judgment that the court below should have entered.
Judgment for plaintiff in error.
HAMILTON, P.J., and MILLS, J., concur.