This matter comes on to be heard on an application for rehearing filed by the respondents in which they claim that the court in its opinion did not take into consideration the question as to the welfare of the child. The gist of the respondents' argument is that the facts in this case in and of themselves, as a matter of law, show that the petitioner abandoned the child and that the future welfare of the child would be best served by leaving it in the custody of the respondents.
Counsel for the respondents rest their claim on the case ofClark v. Bayer, 32 Ohio St. 299, 30 Am. Rep., 593, the question in which arose on a demurrer to a petition in which it was alleged that the parents of the children had entered into an oral agreement for the transfer of custody of their two minor children to the children's grandparents, who agreed to accept the care, custody and possession of such children, and to maintain, protect and educate them, and had renounced and abandoned all rights as parents to the custody of the children. For the purposes of the demurrer, those allegations are admitted to be true. In the case at bar, sufficient facts have been stated in the original opinion, and need not be reiterated here, which distinguish this case from the case of Clark v. Bayer, supra. At no time did the respondents expect or claim compensation for the care and custody of this child. Counsel for the respondents make the point that the mere failure of the father to contribute to the support of the child amounted to abandonment as a matter of law. While this may be true under certain circumstances, we do not believe that the father *Page 21 can be considered to have abandoned the child under the facts in this case.
The application for rehearing does not raise any question which has not already been considered by this court. The court approves of its original ruling in this matter and overrules the application for rehearing.
Application overruled.
HORNBECK, P.J., WISEMAN and MILLER, JJ., concur.