EFFECT OF DIVORCE PROCEEDINGS RELEASING PARENT FROM SUPPORT OF CHILD.

Court of Appeals for Crawford County.

#### Ira T. Rowland v. The State of Ohio.

Decided, February 5, 1921.

*Parent and Child*— Release *of Father Under a Divorce Decree from Support of Minor Child*— Absolves *Him from Prosecution for Failure to Contribute, to Child’s Support.*

A judgment entered in a divorce proceedings, releasing the defendant, father, from any further responsibility regarding his minor child, whose custody, support and so forth is committed to the mother, is available to him as a defense against a prosecution under Sec- . tion 1655, General Code, for failing to contribute to the support • of such child.

TV. *J. Schwenck*for plaintiff in error.

*Chester A. Meek,*for defendant in error.

Hughes, J.; Kinder and Crow, JJ.,

concurring.

The defendant was convicted under Section 3655 General Code, for failing to contribute to the support if his minor child.

The affidavit under which the conviction was had, was filed by his wife, charging him, in substance, with being the parent of this child and charged by law with the support and mainter nance thereof.

The record discloses that the defendant and his wife had been divorced and in the judgment of the court granting the divorce, is contained the order that the custody, care, education, control, support and maintenance of the child is awarded to the wife, and the defendant is released from any further responsibility regarding said child.

Under General Code, Section 7997 the husband is charged by law with the support of himself, his wife and minor children so long as he is able to do so by reason of property, wages or labor. And this obligation which the law casts upon the husband, and father of a minor child, abides with him so long as the child remains under the age of sixteen years.

*76Section 11897, General Code, found in the chapter on divorce and alimony, gives jurisdiction to the court to make such order for the disposition, caire and maintenance of the children as .is just.

Section 1655 of the General Code, under which this defendant was convicted, provides that whoever being charged by law with the maintenance of a child, and neglects his 'duty, shall be guilty of an offense.

It will be observed 'that a requisite, under this section, is that the defendant be charged by law with the'maintenance of the child. The court, in the divorce proceedings having taken from him the custody and maintenance of the child, and having released him from any further responsibility regarding said child, he is, in the opinion of this court, no longer charged with the duty of maintenance.

' We are not unmindful of the decisions of our Supreme Court in which it is held that a husband is not relieved from the responsibility of maintaining Ids child when the custody in the divorce proceeding has been taken from him and given to the wife. It will be observed, however, by a reading of the opinions in these eases, that in none of the eases did the divorce court charge the wife with the maintenance and release the husband therefrom, as was done in the case at bar.

It is well recognized within the state that changed circumstances and conditions will warrant a court in modifying its former order regarding the welfare of the children, and so long as this order remains in force and effect we are of the opinion that it is available to the defendant as a defense against a prosecution for failing to maintain his child under such circum, stances.

Section 1655 of the General Code, above referred to, makes no attempt to define the duties or obligations of either the husband or wife regarding their children, and the Legislature, in our opinion, has given jurisdiction to the divorce court to modify the primary obligation of the husband as defined in Section 7997. by the provisions set forth in Section 11897.

For the reasons above set forth, the judgment is reversed.