Addy v. Addy
| Decision Date | 08 March 1949 |
| Docket Number | 47396. |
| Citation | 36 N.W.2d 352,240 Iowa 255 |
| Parties | ADDY v. ADDY. |
| Court | Iowa Supreme Court |
[Copyrighted Material Omitted]
L. J. McGivern, of Marcus, and Herrick & Ary of Cherokee, for appellant.
McCulla & Moen, of Cherokee, for appellee.
The principal question presented is whether, as the trial court decreed, a mother who procured a divorce in a foreign state with an award of custody of her small child, but without an allowance for its support, may require the father, domiciled in Iowa over whom the divorce court acquired no personal jurisdiction, to contribute to the child's support.
Plaintiff obtained the divorce in Seattle, Washington, whether she and the child were domiciled. (We refer to the mother as plaintiff although she brings this action 'for the use and benefit of' her child.) On June 11, 1946, personal service of the divorce suit was had on defendant, a resident of Iowa, in Nebraska where he was working. Unbeknown to plaintiff defendant then went to Seattle but upon advice of counsel did not appear to the suit and soon thereafter returned either to Nebraska or Iowa. Interlocutory decree was entered August 22, 1946, and final decree February 26, 1947.
The final decree awarded plaintiff custody of the child, born in March 1945, subject to reasonable visitation by defendant. Findings of fact and conclusions of law state $60 a month would be a reasonable sum for defendant to pay plaintiff for support of the child and $160 a reasonable amount to be allowed plaintiff for her attorney fees and costs.
Since July, 1946, defendant has voluntarily contributed $15 a month to plaintiff for the child's support. Plaintiff, her mother and the child have continued to live together in Seattle since the divorce. In May, 1947, plaintiff's counsel wrote defendant the $15 payments were insufficient to support the child and demanded $60 per month. In July, 1947, the present suit in equity was instituted in defendant's home county in Iowa asking that he be required to pay $60 per month for support of the child and $350 for attorney fees in prosecuting this suit. The trial court granted the relief asked.
I. Defendant's principal contention is that neither the child nor the mother has any cause of acton for support of the child which can be maintained against defendant in Iowa.
There is no evidence, nor is it argued, plaintiff or the child had not acquired under the law of Washington a bona fide domicile in that state. We are therefore required by Article IV, section 1, of the federal constitution to give full faith and credit to the decree granting the divorce and awarding custody of the child. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273, overruling Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1; Ex parte McMullin, 164 Cal. 504, 129 P. 773; Anno. 143 A.L.R. 1294.
Even while the rule of Haddock v. Haddock, supra, was in effect a divorce granted in another state was given full recognition in Iowa, in the absence of fraud in procuring it, as a matter of comity between the states. Miller v. Miller, 200 Iowa 1193, 1201, 206 N.W. 262, and citations; Hobson v. Dempsey Construction Co., 232 Iowa 1226, 1230, 7 N.W.2d 896, 898.
There can be no question that upon birth of the child defendant became morally and legally obligated, aside from any statute, to support it during minority. He was not relieved of this obligation by the decree of divorce with its award of custody to the mother. While the decree severed the marital relation between husband and wife it did not divorce defendant from his obligation to provide for the wants of the child.
Among the numerous authorities in support of the conclusions just stated are Sparks v. East, 202 Iowa 718, 721, 210 N.W. 969; Black v. Black, 200 Iowa 1016, 1019, 205 N.W. 970; State v. Manley, 197 Iowa 46, 50, 51, 196 N.W. 724, and citations; Ostheimer v. Ostheimer, 125 Iowa 523, 101 N.W. 275; Annos. 15 A.L.R. 569; 81 A.L.R. 887, 888; 2 Nelson Divorce and Annulment, 2d Ed., 1945, section 14.99; 17 Am.Jur., Divorce and Separation, sections 692, 693; 46 C.J., Parent and Child, section 45.
We have recognized the continuing obligation of a divorced father to provide for the wants of his child notwithstanding the divorce decree does not allow alimony to the wife or support money for the children in her custody. In such cases we have refused to make a subsequent award of alimony to the wife but have made a subsequent allowance for the support of the children. Spain v. Spain, 177 Iowa 249, 261, 158 N.W. 529, L.R.A.1917D, 319 Ann.Cas.1918E, 1225; Duvall v. Duvall, 215 Iowa 24, 30, 244 N.W. 718, 83 A.L.R. 1242. See also Kell v. Kell, 179 Iowa 647, 650, 161 N.W. 634; Dunham v. Dunham, 189 Iowa 802, 826, 178 N.W. 551; McCoy v. McCoy, 191 Iowa 973, 976, 183 N.W. 377.
A father's obligation to support his child is not abrogated by the fact the separation of the parents may have been caused by fault of the wife. Even where a divorce is granted to the father it is usually held he remains liable for support of children whose custody was awarded the mother. The child should not be denied his right to the support of his father because of dissension between the parents for which he was not to blame. Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762, 81 A.L.R. 875, 880, and Anno. 887, 892; Rowell v. Rowell, 97 Kan. 16, 154 P. 243, Ann.Cas.1918C, 936, and Note 939; 17 Am.Jur., Divorce and Separation, section 693; 2 Nelson Divorce and Annulment, 2d Ed., 1945, section 14.99. See also Hensen v. Hensen, 212 Iowa 1226, 1230, 238 N.W. 83; Dunham v. Dunham, supra, 189 Iowa 802, 824, 178 N.W. 551; Monroe County v. Abegglen, 129 Iowa 53, 56, 105 N.W. 350.
A father cannot be relieved from the duty to support his minor children by agreement of the mother. Jaffe v. Jaffe, Iowa, 182 N.W. 784; Edleson v. Edleson, 179 Ky. 300, 200 S.W. 625, 2 A.L.R. 689, 698; Myers v. Anderson, 145 Kan. 775, 67 P.2d 542; 2 Nelson Divorce and Annulment, 2d Ed., section 15.58; 39 Am.Jur., Parent and Child, section 42; 46 C.J., Parent and Child, section 35, which also states the right of a child to the father's support cannot be affected by an estoppel against the mother. To relieve a divorced father of all legal obligation to support his minor children is against public policy. Id., section 36, page 1261; 39 Am.Jur., Parent and Child, section 42.
Since defendant was a nonresident of Washington, without property there, and personal service could not be had in that state, his liability to provide for the child could not be adjudicated in the divorce suit nor can it be enforced by any proceeding outside of Iowa. While the Washington court had jurisdiction in rem or, as sometimes said, quasi in rem to grant the divorce and award the mother custody of the child because of their residence there, it had no jurisdiction to enter any personal judgment against defendant for child support and any such provision would have been void. Rea v. Rea, 123 Iowa 241, 98 N.W. 787, and citations; Kell v. Kell, 179 Iowa 647, 649, 161 N.W. 634; Pennoyer v. Neff, 95 U.S. 714, 734, 735, 24 L.Ed. 565, 573; Spencer v. Spencer, 97 Minn. 56, 105 N.W. 483, 2 L.R.A.,N.S., 851, 114 Am.St.Rep. 695, 7 Ann.Cas. 901; 17 Am.Jur., Divorce and Separation, section 518.
Defendant argues this action will not lie because there is no Iowa statute or decision which authorizes it. We are not impressed with the argument. Many actions are entertained in our courts that are not authorized by statute. A familiar example, somewhat analogous to the present suit, is the action for separate maintenance without divorce which has been recognized in this state for over 75 years upon general equitable principles and considerations of public policy, to enforce the husband's obligation to support his wife. Graves v. Graves, 36 Iowa 310, 14 Am.Rep. 525; Avery v. Avery, 236 Iowa 9, 11, 17 N.W.2d 820, 822, and citations. Under certain circumstances the action of separate maintenance also lies in favor of the husband. Eckles v. Eckles, 231 Iowa 1302, 4 N.W.2d 658; 42 C.J.S., Husband and Wife, § 614b.
The reasoning of the Graves opinion, frequently quoted in later decisions, which first impelled us to entertain suits for separate maintenance is persuasive here. Incidentally our decision in Graves v. Graves, as noted therein, was a minority view at that time. The great weight of modern authority, however, is that equity has inherent jurisdiction to grant separate maintenance independent of any suit for divorce and irrespective of any statute. 27 Am.Jur., Husband and Wife, section 402; 42 C.J.S., Husband and Wife, § 614b.
That no statute prohibits such an action as this is sufficient answer to the argument there is no specific statutory authorization for it. The legal duty of defendant to support the child is clearly recognized by our decisions and the authorities generally. 'Highest considerations of public policy require that parents support their children, * * *.' Murrey v. Murrey, 216 Cal. 707, 16 P.2d 741, 743, 85 A.L.R. 1335, 1339.
It is firmly established that equity has inherent power to protect the rights of minors. Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286, 291-293, and citations; Bartlett v. Bartlett, 175 Or. 215, 152 P.2d 402, and citations; Doughty v. Engler, 112 Kan. 583, 211 P. 619, 30 A.L.R. 1065, 1069; 19 Am.Jur., Equity, section 152.
Unless the right of this child to support from defendant can be enforced in such a suit as this there is no adequate remedy for the enforcement of the right. Courts of equity are slow to hold there is no adequate remedy for the enforcement of a legal right. Probably the most important equitable maxim is that equity will not suffer a wrong (or, as sometimes...
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