dissenting. I dissent because I believe that the majority’s holding ignores the applicable language of the controlling statute.
It is a general rule of contract law that, absent a duty imposed by statutory law or voluntary agreement, one spouse is not liable for the debts of the other. Hausser v. Ebinger (1954), 161 Ohio St. 192, 53 O.O. 86, 118 N.E. 2d 522, paragraph two of the syllabus. The majority finds statutory authority in the first paragraph of R.C. 3103.03. It provides:
“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.”
The majority correctly notes that this provision creates a mutual duty of support between husband and wife. However, it establishes responsibility *81to spouse and children, not to third parties.
The majority fails to confront the statutory provision which imposes liability on a spouse to third parties. That provision is in the second paragraph of R.C. 3103.03. It states:
“* * * If he neglects to support 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 unless she abandons him without cause.” (Emphasis added.)
The above provision codifies the common-law doctrine of necessaries,2 by making the husband liable for “necessaries” provided to the wife, but creates no corresponding duty for the wife to pay for those provided to the husband.3 We should not ignore, or try to circumvent, the statutory language which governs liability to third parties for necessaries. That is the issue before us, not a claim by a child or one spouse against the other.
It is undisputed that appellee never contracted with appellant to pay for the medical services rendered by appellant to her husband. The statute does not impose liability on her to satisfy this debt. Accordingly, I would affirm the decisions of the courts below.4
Moyer, C.J., and Resnick, J., concur in the foregoing dissenting opinion.See, generally, 1 Clark, The Law of Domestic Relations in the United States (2 Ed. 1987) 444-448, Section 7.3.
R.C. 3103.03 has been held by one court of appeals to violate the Equal Protection Clause on the ground that “it is a gender-based statute that discriminates against men by placing on them the primary burden of family support.” In re Rauscher (1987), 40 Ohio App. 3d 106, 531 N.E. 2d 745, paragraph two of the syllabus. We have not passed on this question. However, even if the statute were unconstitutional, this would not affect the outcome of this case.
The issue of constitutionality would be raised if a third-party provider of necessaries were seeking to recover from the husband. Here, the statute does not even purport to make the wife responsible to third parties for necessaries provided to the husband.
I would also urge the General Assembly to reconsider R.C. 3103.03.