#### Tullis, Appellant, *v.*Tullis, Appellee.

(No. 28248

Decided April 30, 1941.)

*189
      *Mr. Ray D. Avery*and *Messrs. Doyle <& Lewis,*for appellant.

*Messrs. Bowman & Hanna*and *Messrs. Geer, Lane & Downing,*for appellee.

Haet, J.

The question to be determined is: Did the Common Pleas Court have jurisdiction to reduce the amount theretofore decreed by the court to be paid by the father for the support of his minor child, when the court entering such decree in a divorce action between the parents incorporated therein the terms of a written contract of separation theretofore entered into between such parents effecting a complete property settlement and providing for the payment of specific amounts for a specified time by the father for the support and maintenance of the minor child, the retention of such jurisdiction for such purpose not being pro*190vided for either by the agreement or the order of the court?

The answer must be found in the application of the statutes, the character and validity of the contract between the parties for the support of their minor child, and the nature and character of the judgment of the court in making that contract a part of its decree.

Section 7997, General Code, provides that “The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able.” Section 8000, General Code, provides that husband and wife may by contract agree upon an immediate separation and make provisions for the support of their children during the separation.

The contract in such case does not exonerate either parent from his or her ultimate duty to support his or her minor child. A father may contract to maintain his child and the mother may exact security for the performance of such contract to protect herself from further obligation to the extent of the father’s contribution. But each must see that the child does not suffer for support, and must protect the public from the expense of supporting such child. The duty in this regard is personal and continuing and cannot be discharged by any contract with the other parent. This duty must be discharged in any event, but if the obligee is obliged to provide such support he may compel reimbursement from the obligor to the extent of the contract obligation. *Bowen*v. *State,*56 Ohio St., 235, 239, 46 N. E., 708. However, if the amount agreed upon in any contract of settlement between the parties for the support of their minor children is insufficient for that purpose, the court may require the payment of additional sums, notwithstanding the contract.

The contract of separation between the parties in this case was complete and final as between themselves and likewise final as to the support of their minor child *191so far as *they*could make it final under the law. The appellant had a legal right to make a contract with the appellee for her permanent support and for the support of their minor child. She had the right to make such contract for the support of the child, not only in its behalf but in her own behalf to protect herself against her secondary liability under the statute for the support of their child. The consideration for such contract was adequate and complete and the contract was mutually and permanently binding on both parties. Apparently, all that she received as a result of the contract, other than indemnity against her secondary liability for the support of the child, was the household goods belonging to the parties. She waived and surrendered all permanent right of support guaranteed by the statute to herself. She also permanently waived every possible right which she might have in any present or future property or estate of her husband and discharged him from every claim of every kind whatsoever except as provided by the contract. These were absolute and complete surrenders which she could not reclaim and which no court could or would set aside so long as the contract was carried out by the appellee. *Hoagland*v. *Hoagland,*113 Ohio St., 228, 148 N. E., 585. Apparently, she made these surrenders in lieu of the provisions contained in the contract for the benefit of her child. These surrenders of right on her part were confirmed by the decree of the court and are now being enjoyed and will be permanently enjoyed by the appellee who makes no offer to restore them or place her *in statu quo*when he asks the court to modify and lessen his contractual obligation to support his minor child. He proposes to repudiate the obligation and at the same time retain the consideration through which the obligation arose. From a purely contractual standpoint no court should, under the law, grant the relief sought by the appellee.

The appellee claims that in an action for divorce and *192alimony between the parents of minor children, the court may enter a permanent or final decree as to alimony or division of property rights between the husband and wife, but that as to minor children, the court has continuing jurisdiction and may from time to time modify its decree as to their support, depending upon the changed conditions and circumstances of the parent responsible for such support; and that even where such contract has been made a part of the divorce decree, the allowance so made is not conclusive and final but may be increased or *diminished*by the court as public policy may dictate or circumstances may warrant.

This court has frequently held that where a decree of divorce provides for the support of minor children of the divorced parents, the jurisdiction of the court is continuing in character and no express reservation in the decree itself is necessary to support such continuing jurisdiction. *Corbett*v. *Corbett,*123 Ohio St., 76, 174 N. E., 10.

This court has also held that even though such a contract has been made a part of the decree of divorce, yet because of the continuing jurisdiction of the court and because of the demands of public policy, the court may subsequently *increase*the support allowance for children if changed circumstances require it, since a parent cannot by his own contract relieve himself of the legal obligation to support his minor children. 14 Ohio Jurisprudence, 546, Section 141. In the case of *Corbett*v. *Corbett, supra,*the wife sought to have the amount allowed her for the support of her two minor children increased and this court held that the lack of a reservation of jurisdiction in the original decree did not deprive the trial court of continuing jurisdiction, and affirmed a judgment *increasing*the allowance for the support of minor children.

The appellee insists, however, and is supported in such insistence by the Court of Appeals, that this court *193has, in the case of *Newkirk v. Newkirk,*129 Ohio St., 543, 196 N. E., 146, decided May 15, 1935, committed itself to the proposition that the court, notwithstanding its original decree approving the contract of the parties providing for the support of their minor child, may reduce the amount of such support provided for in such contract. That case was disposed of by a *per curiam*opinion on the authority of the case *Corbett*v. *Corbett, supra.*An examination of the latter case discloses that it is no authority for the doctrine that the court may reduce the amount of support below that fixed in a contract, but is authority for the position that the court may *increase*the allowance. Furthermore, from an examination of the record in the *Newkirk case,*it is by no means certain that the exact question here raised was then before this court. There was in that case a serious dispute in the testimony as to whether there was any actual contract between the parties as to the support of their minor children. The trial court speaking through its decree as journalized refers to no contract, makes no contract a part of the decree, but provides for the support of such children without reference to any contract.

The Court of Appeals in the *Newkirk case*took the position that since there was a contract the Court of Common Pleas had no right to reduce the allowance for support, and entered the judgment which it considered the Common Pleas Court should have entered. While the record in that case in this court does not indicate the ground of reversal of the judgment of the Court of Appeals, this court was justified in such reversal and in the affirmance of the Common Pleas Court because the latter court made no finding as to any contract and did not make any contract a part of its decree, in which event it was at liberty to modify its original decree by reducing the amount of support for the minor child.

*194This court, so far as it has heretofore specifically spoken on this subject, and the Courts of Appeals of the state generally, have held that when the trial court adopts as a part of its decree the contract of the parents of minor children providing for the support of such minor children, the obligor of such contract cannot escape such obligation as a minimum requirement under the law; that the obligee, the other contracting parent, and the minor children, are entitled to the full performance of such provision for support as a minimum requirement; and that the court has no jurisdiction to abate or reduce the contract provisions for such support. *Law*v. *Law,*64 Ohio St., 369, 60 N. E., 560; *Kettenring*v. *Kettenring,*29 Ohio App., 62, 163 N. E., 43; *Campbell*v. *Campbell,*46 Ohio App., 197, 188 N. E., 300, motion to certify overruled October 11, 1933; *Ferger*v. *Ferger,*46 Ohio App., 558, 189 N. E., 665, motion to certify overruled March 28, 1934.

Such a contract is binding between the parents entering into it as fixing their mutual obligation for the support of their minor children, and the courts should not modify such contractual obligations. The parties having made an agreement specifically permitted and authorized by the statute, the court may not unmake that contract or make a new one for them. To do so would, in the opinion of the court, constitute an impairment of the obligation of contract. The statute, however, becomes a part of the contract, and if the contract allowance is inadequate the court may, notwithstanding the contract, make an adequate allowance.

The fact that the parent agreeing to make payments for the support of his minor child, finds such payments onerous and difficult to make because of changed circumstances, does not give him a legal right to repudiate the contract upon any claim that it is void, illegal or bpposed to public policy. Especially is this true, when, as before stated, he has received full and adequate con*195sideration for his promise, which consideration he still retains and enjoys.

The judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.

*Judgment reversed.*

Weygandt, C. J., Turner and Wildtams, JJ., concur.

Zimmerman, J., dissents.

Matthias and Bettman, JJ., not participating.

Zimmerman, J.,

dissenting. On September 10, 1936, the plaintiff and the defendant, who were wife and husband, respectively, entered into a written separation agreement whereby the defendant transferred to the plaintiff all his rights in certain personal property, for which he was released from any further claims and demands on her part. In the same instrument the defendant agreed to pay for the maintenance and support of their minor child the sum of $100 per month from August 1, 1936, to September 27, 1943, and an increasing monthly amount thereafter until September 27, 1952, when the child would reach her twenty-first birthday.

At the time the separation agreement was executed and until March 1, 1937, the defendant had an annual income of approximately $4,800.

The plaintiff brought suit for divorce against the defendant in the Court of Common Pleas of Wood county, and on January 15, 1937, was granted a decree of divorce because of the defendant’s aggression. Incorporated in such decree were the principal provisions of the separation agreement, upon a finding that the same were reasonable.

On November 18, 1939, the defendant filed a motion asking that he be relieved from “making payments [for the support and maintenance of the child] as required by the former decree of this court, and for an *196order altering the same in such manner as to the court may seem right and proper, and as the facts and circumstances may require.”

At a hearing on the motion, the defendant testified that he was then attending an agricultural college and since September 1, 1938, had been managing his father’s stock farm at a salary of $100 per month. He also testified he was indebted to his father in the sum of nearly $12,000 and that he was receiving no income other than this monthly amount of $100, except occasional gifts from his father. It further appears in the bill of exceptions that both the plaintiff and defendant have embarked on new marital ventures since their divorce.

The Court of Common Pleas sustained plaintiff’s motion to dismiss the defendant’s motion for modification, on the ground that it had no jurisdiction to hear and determine the same. Such action was based on the holding of the Court of Appeals of the Sixth Appellate District, in *Campbell*v. *Campbell,*46 Ohio App., 197, 188 N. E., 300.

An appeal was perfected to the Court of Appeals on questions of law, where the judgment below was reversed by a unanimous court for the reasons given in the dissenting opinion in the *Campbell case,*and on what was believed to have been held by this court in *Newkirk*v. *Newkirk,*129 Ohio St., 543, 196 N. E., 146, consisting of a short and uninformative journal entry reversing the judgment of the Court of Appeals and affirming that of the Court of Common Pleas. Whereupon the cause was remanded to the trial court for further proceedings.

There is a substantial basis for the conclusion of the Court of Appeals in respect to the *Newkirk case.*An examination of the record in such case discloses that Bertha Newkirk secured a divorce from Enoch B. Newkirk in the Court of Common Pleas of Lorain county on March 24,1923, in an uncontested case. In *197the decree Mrs. Newkirk was awarded custody of the minor children and Mr. Newkirk was ordered to pay $8.50 per week for the support of each child during his or her minority. When the divorce was granted the court stated in writing on the appearance docket, “alimony settlement and provision for support of children of the parties approved.”

On May 24, 1934, Mr. Newkirk filed a motion in the original case to modify the decree as to the support of the minor child, Biehard Newkirk, for the reason that he was then about eighteen years old and self-supporting. Upon hearing, the motion was allowed and all payments for Bichard’s support from and after June 2, 1934, were abrogated.

On proceedings in error the Court of Appeals reversed the judgment of the Common Pleas Court, using this language in its judgment entry:

> “And the evidence * * # establishing beyond question that said provision' in said decree for said support was made in pursuance of an agreement of the parties, approved by the court, the Common Pleas Court was without jurisdiction to abrogate same and therefore, proceeding to enter the judgment which the Common Pleas Court should have entered, the motion of defendant in error to modify said decree is overruled and the proceedings on said motion are dismissed.”

It is significant that this court reversed the judgment of the Court of Appeals in the *Newkirk case*and affirmed that of the trial court wholly on authority of *Corbett*v. *Corbett,*123 Ohio St., 76, 174 N. E., 10, wherein the modification of a divorce decree as to the support of two minor children was approved, even though an agreement of the parties covering that matter formed the basis of the decree.

The single question now presented in the pending case is whether the Court of Appeals erred in adjudging that the Court of Common Pleas of Wood county *198possessed the authority to hear and decide the defendant’s motion for modification.

“It appears to be the general rule, that where a court has the general power to modify a decree for alimony or support [including that for minor children], the exercise of that power is not affected by the fact that the decree is based on an agreement entered into by the parties to the action.” 58 A. L. R., 639, annotation. See, also, 109 A. L. R., 1068, annotation.

From an examination of many cases, I am satisfied that the weight of authority today upholds the proposition that a divorce decree providing for alimony and/or the support of minor children, payable in installments, may be subsequently modified to increase or decrease the payments according to changing circumstances, notwithstanding it is based on an agreement of the parties, embodied in the decree. True, in a number of the decisions supporting the above rule the courts have relied in part at least on statutes granting general power to modify a judgment for permanent alimony or support from time to time, but in other of the decisions no statutes are involved.

*Worthington*v. *Worthington,*224 Ala., 237, 139 So., 334; *Holmes*v. *Holmes,*186 Ark., 251, 53 S. W. (2d), 226; *Herrick*v. *Herrick,*319 Ill., 146, 149 N. E., 820; *Maginnis*v. *Maginnis,*323 Ill., 113, 153 N. E., 654; *Adler*v. *Adler,*373 Ill., 361, 26 N. E. (2d), 504; *Nicolls*v. *Nicolls,*211 Iowa, 1193, 235 N. W., 288; *Keith*v. *Keith,*270 Ky., 655, 110 S. W. (2d), 424; *Wilson*v. *Caswell,*272 Mass., 297, 172 N. E., 251; *Schweim*v. *Schweim,*233 Mich., 67, 206 N. W., 353; *Eddy*v. *Eddy,*264 Mich., 328, 249 N. W., 868; *Warren*v. *Warren,*116 Minn., 458, 133 N. W., 1009; *Randall*v. *Randall,*181 Minn., 18, 231 N. W., 413; *Goldman*v. *Goldman,*282 N. Y., 296, 26 N. E. (2d), 265; *Warrington*v. *Warrington,*160 Ore., 77, 83 P. (2d), 479; *Reynolds*v. *Reynolds,*53 R. I., 326, 166 A., 686; *Shoop*v. *Shoop,*58 S. D., 593, 237 N. W., 904; *Jeter*v. *Jeter,*193 S. C., 278, 8 S. E. *199(2d), 490; *Mason*v. *Mason,*163 Tenn., 520, 43 S. W. (2d), 1067; *Gloth*v. *Gloth,*154 Va., 511, 153 S. E., 879, 71 A. L. R., 700; *Troyer*v. *Troyer,*177 Wash., 88, 30 P. (2d), 963; *Lonabaugh*v. *Lonabaugh,*46 Wyo., 23, 22 P. (2d), 199.

In the main, the theory of the cases is that when the agreement produced is sanctioned by the court and introduced into the decree as an integral part thereof, it loses its contractual nature by the merger and becomes solely the judgment of the court.

In the *per curiam*opinion in *Law*v. *Law,*64 Ohio St., 369, 60 N. E., 560, decided in 1901, this court adopted the view, as expressed in the syllabus, that: “A divorce being decreed for the aggression of the husband, and *alimony*being adjudged to the wife in accordance with an agreement of the parties, the terms of the decree *as to alimony*are not, if unaffected by fraud or mistake, subject to modification upon a petition filed by the former husband after the term at which the original decree was made.” (Italics mine.) Compare, *Hassaurek*v. *Markbreit, Admr.,*68 Ohio St., 554, 580, 67 N. E., 1066, 1068.

“Alimony” alone is mentioned in the syllabus and opinion of the *Law case,*and “changes in property rights” in the *Hassaurek case.*In the latter case the father obtained the divorce and the custody of the children.

A real distinction exists between alimony and an allowance for the support of minor children. *Pretzinger*v. *Pretzinger,*45 Ohio St., 452, 459, 15 N. E., 471, 474, 4 Am. St. Rep., 542, 544; 17 American Jurisprudence, 531, Section 695.

Recognizing the difference, there are cases taking the position.that while in the absence of fraud or mistake, there can be no modification of an absolute and final divorce decree granting permanent alimony to the wife,' a decree making provision for the maintenance of minor children may always be modified. *Keith*v. *200
      *Keith, supra*(270 Ky., 655, 110 S. W. [2d], 424); *Pauley*v. *Pauley,*280 Ky., 66, 132 S. W. (2d), 512; *Ruge*v. *Ruge,*97 Wash., 51, 165 P., 1063, L. R. A. 1917F, 721, and annotation beginning on page 729. In a divorce action “there can be no final judgment as to infant children.” *Keith*v. *Keith, supra.*

If it is now the law of Ohio that an award of alimony to the wife in a divorce action cannot be altered by subsequent order when predicated upon an agreement of the parties carried into the divorce decree, I am unwilling to extend any such doctrine to cases like the present one.

In this modern day the “best interest” of the child is of primary importance (Section 8033, General Code), and it has been held by this court that an order or judgment as to the custody or support of minor children is a continuing one, subject to alteration under varying conditions. No reservation, of the power to modify, in the original order is necessary. *Neil*v. *Neil,*38 Ohio St., 558; *Rogers*v. *Rogers,*51 Ohio St., 1, 36 N. E., 310. And this is so, regardless of an agreement between the parents judicially approved. *Corbett*v. *Corbett, supra*(123 Ohio St., 76, 174 N. E., 10). Prom these pronouncements it should logically follow that the proper court has inherent power to modify in *any*just or reasonable manner, a former decree embracing the support of children.

The best interests of the child being the criterion, I can readily conceive of situations where those interests would be served by granting a reduction in the amount for support previously decreed. A father earning less salary or wages than when the original decree was entered might not be able to make the stipulated payments. It would be far better for the child to have an order reducing payments in keeping with the father’s ability to pay than to throw the father in jail for contempt of court, which might cost him his job, or have *201him leave permanently for “parts unknown,” to escape a financial burden oppressive beyond endurance.

Again, the father and mother of minor children stand equally charged with “their care, nurture, welfare and education.” Section 10507-8, General Code. See, also, 30 Ohio Jurisprudence, 595, Section 48. If after divorce the mother should become the recipient of a considerable sum of money or a large amount of property, it would be only fair and right to relieve the father from a part of the obligation of support theretofore ordered, when his earnings and income had appreciably diminished. Moreover, a child for whom support had been ordered might, before reaching majority, secure lucrative employment in business or industry, as in *Newkirk*v. *Newkirk, supra*(129 Ohio St., 543, 196 N. E., 146), be left a fortune or marry advantageously. Under such facts the struggling father ought to be released by the court from additional contributions.

In *Campbell*v. *Campbell, supra*(46 Ohio App., 197, 188 N. E., 300), relied on by the trial court in the instant case, it was held that payments for the support of minor children, as contained in an agreement between husband and wife, which agreement was incorporated in the decree of divorce, could not be reduced upon the husband’s motion for modification, because such action would impair the obligation of the contract, but that it would be altogether permissible on the grounds of public policy touching the child’s welfare to increase the payments if under changed conditions they proved inadequate.

The *Campbell case,*as does the majority opinion herein, proceeds on the theory that the agreement of the parties keeps its identity and remains dominant after inclusion in the decree, and that any *decrease*in the amount stipulated is inhibited because the impairment of a contract obligation would result. If this approach is correct, why is it not equally forbidden to *202
      *increase*the amount definitely fixed by the agreement? “The obligation of a contract consists in its binding force on the parties who made it.” 8 Ohio Jurisprudence, 580, Section 445. See, also, *Goodale*v. *Fennell,*27 Ohio St., 426, 431, 22 Am. Rep., 321, 325.

It would seem to me that the prohibition against the impairment of the obligation of contracts is without application when an agreement having to do with the support of minor children is embodied in the divorce decree. The contractual character of such agreement disappears through absorption. The decree, product of judicial action, becomes the controlling thing of exclusive concern and *its*modification is the matter presented to the court. In passing it may be appropriate to note that we are not here concerned with the rights of the parties under the agreement itself as an independent instrument in another and different kind of action. *Goldman*v. *Goldman, supra*(282 N. Y., 296, 26 N. E. [2d], 265).

My studied conviction is that the judgment of the Court of Appeals, returning the case to the court of first instance for a determination on the facts, is cor- • rect and should be affirmed.