LIABILITY OF HUSBAND FOR SUPPORT OF WIFE WHO HAS ABANDONED THEIR HOME.

#### Hardy v. Smith.

Judge Patterson of Fifth District sitting in place of Judge Dunlap.

Court of Appeals for Cuyahoga County.

Decided, October 29, 1920.

*Husband and Wife*— Husband *not Liable to Father-in-law for Support of his Wife*— Where *she Abandoned without Sufficient Cause the Home Provided by the Husband.*

1. A wife is not justified in abandoning the home provided by her husband so as to render him liable for support furnished her by her father, because of the presence of others in such home whom it was agreed before marriage should be a part of the home.

2. Under such circumstances the father, in order to recover for support furnished the wife, must establish good faith on his part and prove by convincing evidence such misconduct on the part of the husband as would justify the wife in abandoning his home and neglect on his part to make adequate provision for support of his wife.

*559
      *W. J. Mahon,*for plaintiff in error.

*E. J. Klenicka,*for defendant in error.

Washburn, J.

Heard on error.

In this action in the municipal court, John A. Smith, the father of Mrs. E. B. Hardy, recovered a judgment against his son-in-law, E. B. Hardy, for $240, for twenty-four weeks’ board and lodging, furnished by said father to his daughter, Mrs. Hardy, and her child.

The record discloses that Mr. Hardy and his sister were raised by their aunt, and that before his marriage Mr. Hardy explained to the prospective Mrs. Hardy that he felt under obligations to maintain a home for his sister, that he could not maintain a separate home, and that when they were married Mrs. Hardy fully understood and agreed that the aunt and sister should remain as part of his home.

As might be expected, this arrangement did not prove entirely satisfactory, and, because of the presence in the home of the aunt and sister and the consequent friction caused thereby, rather than because of any serious misconduct of the husband, Mrs. Hardy abandoned the home and went to live with her father.

Later, by arrangement between the husband and wife, the husband paid the wife $4.00 per week, for a time,- which was later increased to $6.00 per week, and she made no further demand upon him; and he was willing, and she knew he was willing, to support her and their child in the home he provided and maintained.

The father of Mrs. Hardy made no investigation to ascertain whether his daughter was justified in abandoning her home, and did not make known to the husband the fact that, he expected to charge him for the board and lodging of his wife until twenty of the twenty-four weeks had elapsed.

The statutes of Ohio, bearing on the questions here involved, are as follows:

> “Section 8004. If the wife abandons the husband, he is not *560liable for her support until she offers to return, unless .she was justified by his misconduct, in abandoning him. ’ ’

> “Section 7996. The husband is the head of the family. He may choose any reasonable place or mode of living and the wife must conform thereto.”

> “Section 8003. If the husband neglects to. .make adequate provision for the support of his wife, any other person in good faith, may supply her with 'necessaries for her support, and recover the reasonable value thereof from the husband. ’ ’

Under all the circumstances disclosed by the record, we have reached the conclusion that the trial court was manifestly in error in finding that the misconduct of the husband justified the wife-in abandoning the home provided by him. so as to make him responsible for the support furnished her by her father.

Where the husband maintains a home for the wife, vdiich is ás good as his means will permit, and the wife objects to the presence of others therein, whom, before marriage, she understood and agreed should be a part of such home, and she abandons such home and returns to her father, and her father seeks to. hold the husband for her support, the father should be held to a stricter proof than a tradesman or other parties not related to the wdfe, as to the necessity of harboring and furnishing her with' necessaries. Under such circumstances public policy demands that the good faith of the father be established, and that he produce convincing proof of the misconduct of the husband, which justified the abandonment of the-home, and neglect on the part of the husband to make adequate provision for the support of his wife.

This record does not furnish such proof, and the judgment .of the municipal court is therefore reversed, as being manifestly against the weight of the evidence.

Patterson and Vickery, JJ., concur.