13 Ohio App. 403 | Ohio Ct. App. | 1921
Peter V. Sherwood filed an action for divorce against his wife in the court of common pleas of Hamilton county. He also asked for an order granting to him custody, care and control of their child. At the conclusion of the trial the presiding judge handed down a memorandum opinion setting forth that plaintiff was entitled to a decree, that no order would be made as to the custody of the child, that plaintiff should pay into court the sum of $10 á week for the support and maintenance of the child, and, further, that the decree for divorce would not be entered of record until the said Peter V. Sherwood should secure the payment of the $10 per week by a bond of $1500, pursuant to Section
The defendant then moved for judgment on the pleadings. This motion was granted by the court
When the matrimonial affairs of Peter V. Sherwood and his wife were before the court it had the power to pass upon the rights of both parents, of the child, and of the state of Ohio. The domicile of the child following that of the father, as a matter of law (19 Corpus Juris, 411, 412, and Toledo Traction Co. v. Cameron, 137 Fed. Rep., 48, 56), and the father being domiciled and residing in Ohio, the court had jurisdiction in the suit brought there by the father to determine the right to custody and the duty to support the minor. Section 16 of the Bill of Rights of the Constitution of Ohio provides:
“All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”
It is argued that divorce is a remedy provided by law for the amelioration of injuries suffered by one party to a marriage contract at the hands of the other party, and that by establishing one of the grounds for divorce the party is entitled to have the contract of marriage dissolved. The argument fails to takp into consideration that marital relations are not merely a matter of the rights of parties to a contract. The relation once formed, the law steps in and creates a status and holds the parties to various obligations and liabilities. (Maynard v. Hill, 125 U. S., 190.) The power of the legislature over the subject of marriage as a civil status is unlimited except as restricted by the constitution. The English law concerning divorces, as it existed prior to the
The court is of opinion that Section 11979-1 is a proper exercise of the powers of the legislature in respect to the subject of domestic relations and that it does not violate any constitutional provision.
It is further argued that even if the statute is constitutional the intention of the statute is only to require a father to make provisions for a child who is domiciled in Ohio, and that the failure to support a child domiciled elsewhere is and should be pro
The cases of State v. Sanner, 81 Ohio St., 393, and In re Poage, 87 Ohio St., 72, show the policy of the criminal law of Ohio. A father can be punished criminally for failure to support a child when the child is in this state, and only then. It does not follow, however, because no criminal penalty is applied for failure to support a child elsewhere, that the state of Ohio does not recognize the obligation which a parent owes to his child. A father owes to a minor child duties arising from its immaturity and its inability to care 'for itself. Those duties are prescribed by the most elementary principles of civilization as well as by law. Such a duty is sometimes spoken of as a “natural duty.” (In re Poage, supra, 72, 86.) By the great weight of authority the obligation is not founded solely on the statute. (20 Ruling Case Law, 622, Section 30, note 10; Pretzinger v. Pretzinger, 45 Ohio St., 452, 459.) While criminal proceedings are often the most available mode for enforcing this duty, there exists an obligation independently of the criminal statutes referred to in the Sanner and Poage cases. The statute pursuant to which the court acted is a further means of securing to the child the performance by the father of the duty which the father owes, regardless of where the minor child may happen to be. The statute does not limit the obligation of the bond to be given, nor can the court' by so-called interpretation read into it something that the legislature did not intend.
It follows that the statute is applicable to the case at bar. Since the court could exact the execution
The court erred in granting judgment in favor of the defendant on the pleadings.
The judgment will be reversed.
Judgment reversed.