Barrett v. Barrett, Civil 3464

• Decision Date: 18 December 1934
• Docket Number: Civil 3464
• Citation: 44 Ariz. 509,39 P.2d 621
• Parties: SAM BARRETT, Appellant, v. ROY BARRETT, Appellee
• Court: Arizona Supreme Court

39 P.2d 621

44 Ariz. 509

SAM BARRETT, Appellant, v. ROY BARRETT, Appellee

Civil No. 3464

Supreme Court of Arizona

December 18, 1934

APPEAL from a judgment of the Superior Court of the County of Maricopa. Henry C. Kelly, Judge. Judgment affirmed.

Messrs Hayes & Allee, for Appellant.

Mr. L C. McNabb and Mr. Terrence A. Carson, for Appellee.

OPINION

ROSS, C.J.

This proceeding involves the right of a stranger, who has voluntarily furnished necessaries to minor children in the legal custody of their mother in pursuance of an order in a divorce decree, to maintain an action against the father for his expenditures in that behalf.

The complaint, in substance, alleges the following facts: That defendant, Sam Barrett, and Olive Barrett were married November 7, 1907; that the issue of said marriage was three children, to wit, Roy, May and Lloyd Chester Barrett, whose ages at the time of bringing this action were, respectively 24, 18 and 16 years; that in 1915 the defendant, wilfully and without cause, deserted his wife, Olive Barrett, and abandoned said children, who at that time were all minors that on said ground she obtained a divorce from defendant and was awarded the custody of the children on December 8, 1917; that since that date defendant has failed, refused and neglected to provide the necessaries of life for the minor children; that the mother, Olive, has become physically unable to work and make a living and to furnish the children with the bare necessities of life; that she has been an invalid and under a doctor's care for several years; that the plaintiff (Roy Barrett) after he arrived at majority, and for the three years just prior to the filing of his complaint (May, 1933), "in order to prevent said minor children (May and Lloyd Chester) from being in need and want of food, clothing, medical care and education, furnished... all the necessities... for said minor children," at an expenditure of $50 per month for each of them, because defendant failed and refused to furnish such necessaries; that defendant knew plaintiff was expending money for such purposes; that plaintiff has expended in the last three years for the support of said minors $3,600, for which defendant is indebted to him.

The defendant demurred generally to the complaint, and answered putting in issue practically all of its allegations, except those of marriage, the parentage of the children and the infancy of May and Lloyd Chester, and pleaded in the nature of a bar to the action the terms of the decree of divorce, which he alleges awarded the custody of the children to their mother, Olive Barrett, and the sum of $1,000 and certain items of personal property, in lieu of all other or further provision for the support of the mother and children, and absolved defendant from the duty to support his minor children; that during the year 1918 said Olive Barrett applied to the court for a modification of said decree to require defendant to pay plaintiff a monthly sum for the support and maintenance of the children, and that the court after a hearing of said application denied it, and that such order and the decree stand unmodified.

The demurrer was overruled and trial had before the court, without a jury, resulting in a judgment for plaintiff in the sum of $1,779.

The court's ruling on the demurrer is assigned as error, as is also the court's action in ignoring the decree in the divorce proceeding, it being contended that the award of the custody of the children to their mother, and an allowance for their maintenance, carried with it the duty of support, and that, in order to fix any duty on defendant to support the children, it was necessary to secure a modification of the judgment casting the duty on him. It is also assigned "that no contract or agreement, express or implied, as between the plaintiff and defendant, whereby the defendant agreed to reimburse the plaintiff for his alleged expenditures was shown."

The defendant under these assignments presents four propositions of law, in the form of interrogatories, as follows:

"(1) Where a decree of divorce has been granted to the wife by reason of the fault of the husband, whereby the custody of minor children are (is) awarded to the wife and the wife is expressly charged with the duty of supporting and providing for such children, may a third party, with knowledge of the facts and in the absence of a contract understanding with the husband for reimbursement, maintain an action against the husband for moneys advanced toward the support and education of such minor children?

"(2) Does such decree fix the status and obligations of the parties until set aside or modified, assuming the children continue to reside with the mother?

"(3) May the mother in such case have a legal action and claim against the father for past support provided by her for the children?

" (4) May a stranger to the recording the absence of an agreement for reimbursement have a legal claim and demand against the father for moneys contributed or supplies voluntarily furnished the minor children?"

As the answer to the first proposition, and indeed all of them, depends upon the facts and circumstances, we think it well to give a summary of the court's findings.

The court found that the minor children, during the time for which plaintiff sued defendant for their support, were in the custody of their mother; that the mother was during that period, and had been for some time prior thereto, indigent and incapacitated by physical infirmity from providing anything for the support of the minor children; that such children had no means of support other than such as plaintiff furnished, except during the months of February and March of 1933, when the plaintiff was financially unable to support the minors, the defendant contributed some money and provisions; that plaintiff prior to furnishing the necessaries to said minors informed the defendant of the indigence of the mother and of the children and requested of him the discharge of the duty of supporting them; that, the defendant failing to act, plaintiff assumed the duty of providing the children with the necessaries of life.

We add that, contrary to the allegations of the complaint that the divorce was obtained on the grounds of desertion, the record shows that it was asked for and granted upon the ground of cruelty. But no point is made of this variance.

While the legislature has in many respects provided for the protection of minor children, it has failed by any direct or positive legislation to define specifically the duties of parents with respect to the support of their minor children. We must therefore rely largely upon the rule of the common law in fixing such responsibility. The courts, especially those of an early date, are not in agreement as to the rule. They all agree, however, that there is a moral and natural obligation on the part of the parent to support his minor children, but it was held by some of them that there was no legal obligation or method of enforcing the duty. The reasons given for the rule of nonliability we need not state, for we believe the enlightened legal concept of the present day is that parentage in and of itself imposes a legal duty of support to minor children. In Doughty v. Engler, 112 Kan. 583, 211 P. 619, 30 A.L.R. 1065, 1067, 1068, the court, in speaking of such duty, says:

"By the great weight of judicial opinion in this country parents are under a legal duty, regardless of any statute, to maintain their legitimate minor children (20 R.C.L. 622), the obligation being sometimes spoken of as one under the common law and sometimes as a matter of natural right and justice and often accepted as a matter of course without the assignment of any reason. Chancellor Kent says: 'The wants and weaknesses of children render it necessary that some person maintain them, and the voice of nature has pointed out the parent as the most fit and proper person. The laws and customs of all nations have enforced this plain precept of universal law.' Kent's Comm. 189.

"Blackstone begins his discussion of the duties of parents to legitimate children thus: 'The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation, says Puffendorf, laid on them not only by nature herself, but by their own proper act, in bringing them into the world; for they would be in the highest manner injurious to their issue, if they only gave their children life that they might afterwards see them perish. By begetting them, therefore, they have entered into a voluntary obligation to endeavor, as for as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have the perfect right of receiving maintenance from the parents.' 1 Blackstone's Commentaries, 447.

"A sufficient reason for holding parents to be under a legal obligation, apart from any statute, to support their legitimate child while it is too young to care for itself, is that the liability ought to attach as a part of their...