Barry v. Sparks

• Decision Date: 31 May 1940
• Citation: 306 Mass. 80,27 N.E.2d 728
• Parties: BARRY v. SPARKS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 80

27 N.E.2d 728

BARRY

v.SPARKS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 31, 1940.

Action by Mary Barry against William P. Sparks and others for board and lodging furnished to the minor son of the defendant. From a final order of the Appellate Division which reversed finding of the District Court for the plaintiff and ordered judgment for the defendant, plaintiff appeals.

Reversed, and new trial ordered.Appeal from Appellate Division, on Report from Municipal Court, Charlestown District; McDonell, Judge.

James J. Kiley, of Boston, for plaintiff.

T. H. Kane, of Boston, for defendant.

DONAHUE, Justice.

The plaintiff brought this action in a district court to recover for board and lodging furnished by her to the minor son of the defendant in the period from June 10, 1932, to September 27, 1938. A judge in the District Court found for the plaintiff, and reported to the Appellate Division his refusal to grant four rulings requested by the defendant. The Appellate Division held that there was error in the refusal to give two of the requested rulings and that it was unnecessary to consider the other two requests. Its final order was: ‘Finding for plaintiff reversed, judgment for defendant.’

The report of the judge of the District Court contains no specific findings of subsidiary facts by the judge and does not purport to summarize all the evidence heard by him.

The report states: There ‘was evidence tending to show’ what is here recited. A probate court by decree dated December 1, 1930, which became absolute on June 2, 1931, granted to the defendant a divorce from his wife, who was the daughter of the present plaintiff, on the ground of cruel and abusive treatment. The decree further provided that the maternal grandmother should have custody of the minor child of the parties to the divorce proceedings, that the defendant could see and have the child with him at reasonable times, and that the defendant should pay to his divorced wife $11 each week for her support and the support of the child until further order of the court. The divorced wife died on July 25, 1932. The defendant thereafter made no payment for the support of the child, who remained with the plaintiff. She has continued to support it. There was no conversation or agreement between the plaintiff and the defendant relative to his paying for the board and lodging furnished to the child by the plaintiff. The plaintiff expected to be paid for the board and lodging furnished. She made no demand on the defendant for such payment until a few weeks before the suit was brought. The defendant, at some time after the divorce, remarried and established a home. He did not see his child from June, 1932, until he saw him at the time of the trial in the District Court. He once went to the home of the plaintiff for the purpose of seeing the child but did not see either the child or the plaintiff, and once went to the school attended by the child, ‘and drove around looking for him’ but did not see him. The defendant testified that he ‘supposed’ $5 a week was a fair charge for the board and lodging furnished by the plaintiff to the child.

The Appellate Division held that the judge in the District Court erred in refusing to give the following requests of the defendant for rulings: ‘1. The Probate Court having made a decree relative to the support of the defendant's child, which was to continue until further order of the court, the plaintiff's remedy is under a decree of that court which it had ample authority to make as part of the original decree of at any time subsequent. 2. The decree of the Probate Court having limited the defendant's liability to payments to the libellee the defendant is not legally liable to the plaintiff unless and until the probate decree is modified.’

The Appellate Division held that it was unnecessary to consider the rulings of the judge denying the third and fourth requests for rulings, which are hereinafter discussed. We take the statement in the final order of the Appellate Division, ‘Finding for plaintiff reversed, judgment for defendant,’ to mean that it reversed the rulings of the judge, which denied the first and second requests, and on that basis ordered judgment for the defendant. Loanes v. Gast, 216 Mass. 197, 199, 103 N.E. 473. The first and second requests for rulings were rightly denied by the trial judge.

1. It was said in Creeley v. Creeley, 258 Mass. 460, 463, 155 N.E. 424, 425, 52 A.L.R. 285: ‘At common law a father is entitled to the custody of his minor children and, if of sufficient ability, is bound to support them. * * * Accompanying this obligation to support is the right on the part of the father to the custody, society and services of the child.’ Commonwealth v. Briggs, 16 Pick. 203, 205;Reynolds v. Sweetser, 15 Gray, 78, 80.Brow v. Brightman, 136 Mass. 187, 188.Gleason v. Boston, 144 Mass. 25, 26, 27, 10 N.E. 476.Trasurer & Receiver General v. Sermini, 229 Mass. 248, 251, 118 N.E. 331. This obligation, and these rights of a father at common law, may be affected by the provisions of various statutes which in stated circumstances give to the courts the power to award the custody of minor children to some one other than a parent. See G.L.(Ter.Ed.) c. 119, § 4, dealing with neglected children; Commonwealth v. Ball, 259 Mass. 148, 156 N.E. 21; G.L. (Ter.Ed.) c. 201, § 5, which provides for the appointment of a guardian by the Probate Court and deals with the matter of the custody of a minor; Richards v. Forrest, 278 Mass. 547, 180 N.E. 508; G.L.(Ter.Ed.) c. 209, § 32, applicable where a husband fails to provide suitable support for his wife, or either spouse is living apart for justifiable cause; and G.L.(Ter.Ed.) c. 209, § 37, which applies where the father and mother merely live apart and are not divorced. Bergeron v. Bergeron, 287 Mass. 524, 192 N.E. 86;Marshall v. Marshall, 236 Mass. 248, 128 N.E. 27.

We are here concerned with the effect on the common law rights and obligations of a father when, by a decree entered in divorce proceedings, custody of his child is given to a third party, and payments by the father for the support of the child are ordered. Such a decree could properly be entered, and ‘upon the petition of either parent, or of a next friend’ (G.L.[Ter.Ed.] c. 208, § 28) could be modified from time to time to meet changing conditions, Brow v. Brightman, 136 Mass. 187, 189;Perkins v. Perkins, 225 Mass. 392, 397, 398, 114 N.E. 713, during the lives of the parents and the minority of the child. Hersey v. Hersey, 271 Mass. 545, 550, 171 N.E. 815, 70 A.L.R. 518. So long as such a decree is in effect a father does not have the right to the custody of his child and is not under the obligation to provide for its support other than to make the payments for its support ordered by the decree. Creeley v. Creeley, 258 Mass. 460, 463, 155 N.E. 424, 52 A.L.R. 285;Dodge v. Adams, 19 Pick. 429, 431, 432;Miller's Case, 244 Mass. 281, 238,138 N.E. 254; but see G.L.(Ter.Ed.) c. 273, § 1. But when such a decree has been entered, upon the death of one of the parents (in the present case, the mother) the divorce decree ceases to have any further continuing effect, Stone v. Duffy, 219 Mass. 178, 182, 106 N.E. 595;Leclerc v. Leclerc, 85 N.H. 121, 123, 155 A. 249, 74 A.L.R. 1348, at least when, as here, the decree makes no provision for its continuance beyond the lives of the parents. Compare Southard v. Southard, 262 Mass. 278, 280, 159 N.E. 512. The rights and the obligations of a father with respect to a minor child after the death of his divorced wife are those of a surviving parent, unaffected by the decree which had been entered in the divorce proceedings. Stone v. Duffy, 219 Mass. 178, 182, 106 N.E. 595;Clarke v. Lyon, 82 Neb. 625, 629, 630, 118 N.W. 472, 20 L.R.A.,N.S., 171. When the divorced wife of the defendant died there was no longer any effective...