Thе plaintiff wife, appellee herein, obtained a decree of divorce against the defendant husband, appellant herein, which decree ordered defendant to support the minоr child. Defendant contends that this order is contrary to law.
*172 The facts are simple and undisputed. Prior to marriage, plaintiff informed defendant that she was pregnant by another. Nevertheless, the partiеs married on November 5, 1955, and the child was born during the marriage.
Thereafter, on May 16, 1957, plaintiff began her аction for divorce. The decree was granted, and the order complained of was made on February 28,1958.
Defendant recognizes the principle established by the case of
Miller
v.
Anderson,
“1. The natural father of a child can not be held for its support, under the statutes of this state, if the mother, after the child was begotten, and during prеgnancy, contracts a marriage with another man, who marries her with full knowledge of her condition.
“2. By suсh marriage, the man so marrying, consents to stand in loco parentis to such child, and is presumed in law to be the father of the child, and this presumption is conclusive. ’ ’
Defendant contends that there have been philosoрhical changes in the law which would mitigate his burden. Yet none of the cases cited or known to the court has overturned the basic concepts upon which the present order for support is based.
Whitecotton
v.
Whitecotton,
“We hold, therefore, that the finding of the trial court, that the evidence was insufficient to prove that the plaintiff was not the father of the child, was a determination, in effect, that the child was conceived by the parties аs husband and wife, and that, by reason of such determination, it became the duty of the court to make аn order for the disposition, care and maintenance of the child.”
State, ex rel. Walker,
v.
Clark,
*173 “In a case of this kind, it is incumbent оn plaintiff to prove by clear and convincing evidence that the child is not attributable to her former husband. If she does, the issue of the guilt of the accused under the bastardy complaint may be resolved against him by a preponderance of the evidence. ’ ’
Powell
v.
State, ex rel. Fowler,
“Every child begotten in lawful wedlock is presumed in law to be lеgitimate.”
The second paragraph of the syllabus in the
Powell case
declared that, before such a child could be adjudged a bastard, proof of the husbаnd’s nonpaternity must be ‘ ‘ clear, certain and conclusive,” but it was overruled by
State
v.
Clark, supra
(
Perhaps the case which comes closest to being contrary to
Miller
v.
Anderson
is
State
v.
Oldaker,
State, ex rel. Sprungle,
v.
Bard,
Defendant apparently stakes his hope upon what he contends is a mellowing judicial tendency. We can fully appreciate his sense of hardship. But it must be remembered that he has voluntаrily taken this burden upon himself. The basic philosophy of
Miller
v.
Anderson, supra
(
The opinion (Miller v. Anderson) contains this language at page 480 (43 Ohio St.) :
“If another man, not the father of the unborn child, elects to stand in loco parentis tо the child, the law will esteem such man as the father; that one who marries a woman that he knows to bе enciente is regarded in law as adopting the child into the family at its birth; that he could not expect the mother tо dis *174 card it or abandon it at its birth, or refuse it nurture or maintenance, and that the child, so receiving nurture аnd support, must necessarily become one of the family of the wife, which would also be of the fаmily of the husband; that this understanding must necessarily enter into the marriage contract of the husband and wife, аnd when this relation is established the law raises a conclusive presumption that the husband is the father of such child.
( i * # *
“And this rule, as announced, is established upon obvious principles of public policy and decency. This child was born in 1865. The husband had prior thereto condoned the wife’s offense, and by taking her in marriage, with full knowledge of her condition, adopted her child on its birth into his family, and, even if he was not its natural father, consented to stand in law as such, with ail the rights and responsibilities of a father in fact. ’ ’
By the marriage the defendant husband deprived the plaintiff wife of the right to institute bastardy action against the natural father, Section 3111.01, Revised Code; Miller v. Anderson, supra. lie himself has voluntarily assumed the burden instead, thereby profoundly altеring the status, rights and responsibilities of others. He must, therefore, continue to meet his obligation, onerous as it may now seem to him.
The judgment is affirmed.
Judgment affirmed.