Assman v. Assman

• Decision Date: 02 November 1915
• Citation: 179 S.W. 957,192 Mo.App. 678
• Parties: MATILDA ASSMAN, Appellant, v. WILLIAM S. ASSMAN, Respondent
• Court: Missouri Court of Appeals

179 S.W. 957

192 Mo.App. 678

MATILDA ASSMAN, Appellant, v. WILLIAM S. ASSMAN, Respondent

Court of Appeals of Missouri, St. Louis

November 2, 1915

Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.

AFFIRMED.

Judgment affirmed.

Charles Fensky and Grant Gillespie for appellant.

(1) After the passage of the Marriage Woman's Act, the husband and wife had the right to contract with and deal at arm's length with each other.Rice Stix & Company v Sally,176 Mo. 107.Under section 8304, R. S. 1909, a married woman is deemed a femme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, etc., hence she may contract or transact business with her husband with the same freedom as any other individual.Rice Stix & Co. v. Sally,176 Mo. 107;O'Day v. O'Day,194 Mo. 588;Bower v. Daniel,198 Mo. 289, 320;Donovan & Boyd v. Griffith,215 Mo. 149;Jones v. Hogan,135 Mo.App. 347.(2)The father is the natural guardian of and responsible for the care and education of his minor child, sec. 403, R. S., 1909;Rankin v. Rankin,83 Mo.App. 340;McClosky v. McClosky, 93 Mo.App. 401.

Jesse McDonald and Henry S. Caulfield for respondent.

(1) Primarily, while bound by law to support his child, a father has the right to provide such support in his own home, and he is not bound to provide for it elsewhere unless through the father's fault the child lives apart from him.Spencer Law of Domestic Relations, sec. 493;29 Cyc. p. 1610;Hyde v. Leisenring(Mich.),65 N.W. 536;Dodge v. Adams,19 Pick. 432;Glynn v. Glynn,94 Me 469;Foss v. Hartwell,168 Mass. 66.(2) The burden of proving that defendant was unwilling to provide such support, or that the child lived apart from him because of his fault was upon the plaintiff.Glynn v. Glynn,94 Me. 469;Dodge v. Adams,19 Pick. 432;Perrin v. Wilson,10 Mo. 451.(3)Defendant's conduct, subsequent to the abduction of his child, did not constitute a consent, so as to bind him to reimburse plaintiff for his support.(4) All the cases recognize the father's primary right to have the custody of his child, and those that deny his right to withhold support because the mother has such custody do so solely because he had an ample remedy to enforce such right in the courts.McCloskey v. McCloskey,93 Mo.App. 393.By depriving defendant of such remedy plaintiff has placed herself without the reason of the decisions she would invoke and rendered them inapplicable.Moreover, such decisions are not applicable to a case like this, where the suit is brought by an undivorced wife living apart from her husband without cause or consent.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

--This is a suit to recover the amount expended for the care, keep and education of defendant's minor son.At the conclusion of the evidence the court directed a verdict for defendant and plaintiff prosecutes the appeal.

The parties are husband and wife.It appears they were married August 14, 1890, and separated May 15, 1900.They resided as husband and wife in St. Louis, Missouri, prior to their separation.It does not appear what occasioned the separation, but at any rate plaintiff removed to the State of New York, May 27, 1901, where she has since resided.At that time the minor son, Harry Robert, was about seven years of age.He resided at all times with defendant, his father, and in his house in the city of St. Louis.Although plaintiff and her husband remained separate, no divorce was ever granted either party.About February, 1906, when the minor son was aged thirteen years, plaintiff returned to St. Louis from New York and induced him to accompany her to that State.It appears that defendant was not consulted concerning this matter, and plaintiff admits in her testimony that she took the minor son into her custody without the knowledge or consent of defendant, his father, although a week later defendant sent the clothing of the boy to him to Brooklyn, New York, and wrote a letter urging him to be good to his mother.After having supported the minor son for several years in New York, plaintiff instituted this suit to recover from defendant, the father, the amount expended in his care, keep and education.

The court directed a verdict for defendant, in the view that, though the obligation to support the son devolved upon defendant, the father, in the first instance, it was not enforceable in the circumstances of the case, at the suit of the mother, who was undivorced, for that she had voluntarily taken the child into her custody and removed him to a foreign State without the knowledge or consent of the husband; and we are persuaded that the ruling was a proper one on the facts.

There can be no doubt that primarily the obligation to support the minor child rests upon the father, and on his failure or neglect to furnish necessaries for the support of the child according to the station in life, one who has done so may recover from the father accordingly.So it is that, where the father is at fault, as by abandoning the home, the wife may recover from him for such necessities as she has furnished the minor children during his absence, and this is true though he be divorced from her in a foreign State, even though the decree does not purport to award the custody of the children to either party.[SeeRankin v. Rankin,83 Mo.App. 335;McCloskey v. McCloskey,93 Mo.App. 393, 67 S.W. 669.]

But here it does not appear that defendantfather was at fault in the matter at all, and, indeed, no decree of divorce has been given either party.Presumptively, the defendant furnished a good home and all necessaries to the minor son.The parties stand as husband and wife, and while the primary duty of support rests upon the husband, as a corollary thereto he is entitled to the custody and earnings of the minor children as well, at common law.Moreover, under our statute(section 403, R. S. 1909) then in force, the father was the natural guardian of the child and entitled to its care and custody and to direct...