Opinion
No. 29336
Decided February 24, 1943.
Parent and child — Obligation of parents to support minors — Father's duty not extinguished by decree for divorce, custody and support, when — Workmen's compensation — Death benefits payable to minor child as dependent, when — Section 1465-82, General Code — Dependency based upon right to support.
1. By both the statutory and common law of Ohio, parents are charged with the obligation of supporting their minor children.
2. A father's duty to support his minor child is not extinguished by a decree granting him a divorce and giving to the mother custody of the child with a monetary award against the father, which was never paid. Upon the death of the father from injuries received in the course of his employment under circumstances entitling his dependents to death benefits within the Workmen's Compensation Act, the Industrial Commission has the power to make an award to such minor child as a dependent under Section 1465-82, General Code.
3. Under the Workmen's Compensation Act, dependency is based upon the right to support rather than upon the actual fact of support.
IN MANDAMUS.
On October 31, 1941, Ralph E. Wright sustained injuries in the course and scope of his employment, from which he died several days later. His employer was a contributor to the state insurance fund. Surviving him were his widow, Helen E. Wright, the relatrix, with whom he was living, and Jean Wright, a normal 17-year old daughter by a former marriage, a high school student, who resided with her mother.
The widow and daughter each filed a claim with the Industrial Commission for death benefits under the Workmen's Compensation Act. The commission assumed jurisdiction and made a total award of $7,000. Finding the widow wholly dependent and the daughter partially dependent, the widow was allotted $5,000 and the daughter $2,000, payable in installments.
The widow, being dissatisfied with such disposition and having attempted unsuccessfully to have it changed, brings this original action in mandamus to require the Industrial Commission to pay her the entire $7,000 at the rate of $21 per week, on the ground that she is the only person entitled to recognition as a dependent.
It appears that the decedent obtained a divorce from his first wife in 1926. In the decree, custody of their minor child, Jean, was given to the mother. The father was accorded the privilege of seeing the child and was ordered to pay $10 weekly, the purpose of which was not specified. He did not see the child and no payments were made.
Mr. Paul L. Birt and Mr. A.K. Meck, for relator.
Mr. Thomas J. Herbert, attorney general, Mr. Robert E. Hall and Mr. Albertus B. Conn, for respondent.
Citing the cases of Industrial Commission v. Drake, 103 Ohio St. 628, 134 N.E. 465, and State, ex rel. Pivk, v. Industrial Commission, 130 Ohio St. 208, 198 N.E. 631, the relatrix argues (1) that Jean Wright had no "right to support" from her father, such obligation being the legal responsibility of her mother under the circumstances, and (2) since Jean's father never contributed anything to her support after the divorce, she lost nothing by his death and, therefore, the Industrial Commission lacked any basis for making her an award.
In this case the payment of death benefits is governed by Section 1465-82, General Code. It is clear, from the facts, that any right of Jean to receive an award would come within the last paragraph of that section, reading in part:
"In all other cases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employee * * *."
This court has said, with relation to the Ohio Workmen's Compensation Act, that dependency is based upon the right to support rather than upon the actual fact of support. State, ex rel. Person, v. Industrial Commission, 126 Ohio St. 85, 89, 183 N.E. 920. Compare Industrial Commission v. Dell, Exrx., 104 Ohio St. 389, 135 N.E. 669, 34 A. L. R., 422.
By both the statutory and common law of Ohio, parents are charged with the duty of supporting their minor children. 30 Ohio Jurisprudence, 593, Section 47. And see, Sections 7997, 13008 and 1639-46, General Code. At common law this obligation rested primarily upon the father. Bowen v. State, 56 Ohio St. 235, 239, 46 N.E. 708.
In the third paragraph of the syllabus of Industrial Commission v. Drake, supra, it was held:
"The obligation of a father to support his infant children is not excused on the ground that the custody of children has been awarded to a divorced wife in a suit where no order was made for allowance and support of children, and such children are therefore entitled to an award of compensation at the hands of the commission by reason of the father's death from injuries received in the course of his employment."
We see no good reason why the rule should be different in a situation where the father was ordered to pay an allowance in a divorce decree, but never complied. See State v. Stouffer, 65 Ohio St. 47, 60 N.E. 985.
"The majority of courts in this country impose a duty on the father to support a minor child, the duty persisting after the divorce." 7 Ohio State Univ. Law Journal, 446, 447.
While, of course, the effect of a divorce decree upon the right of the children of the parties to compensation under workmen's compensation acts depends upon the particular provisions of the act involved and the facts of the case, a number of decisions, in line with the Ohio authorities, hold that a divorce decree awarding the custody of minor children to the mother does not affect the father's legal liability to support such children, and an award of benefits to them as dependents, by the Industrial Commission, on account of the father's death, is proper. Representative cases are Panther Creek Mines v. Industrial Commission, 296 Ill. 565, 130 N.E. 321; Shea v. Industrial Commission, 217 Wis. 263, 258 N.W. 779.
It is therefore our conclusion that the making of an award to decedent's minor daughter Jean was within the power of the Industrial Commission under Section 1465-82, General Code, and that no abuse of discretion is apparent. The writ of mandamus is accordingly denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, BELL, WILLIAMS and TURNER, JJ., concur.