Bennett v. Robinson
| Decision Date | 23 April 1914 |
| Parties | BERTIE MARIE BENNETT, Respondent, v. BUDD M. ROBINSON, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lawrence Circuit Court.--Hon. Carr McNatt, Judge.
AFFIRMED.
Judgment affirmed.
Spencer Grayston & Spencer for appellant.
(1) The plaintiff had the right under the statute to have the court consider the "circumstances of the parties and nature of the case," and to make such order as to the court seemed reasonable for the maintenance of the child at the time when the divorce was granted. No such order having been made, the presumption is, either that the plaintiff voluntarily waived that right, or that the court concluded that the circumstances of the case were such as not to warrant such an order, and determined the matter adversely to the plaintiff. Plaintiff's remedy is an application to the court for a modification of the decree to provide for child's maintenance. Husband v. Husband, 67 Ind. 583, 33 Am St. Rep. 107; Rich v. Rich, 88 Hun (N. Y.), 566, 34 N.Y.S. 854; Brown v. Smith, 19 R.I. 319, 33 A. 466 30 L. R. A. 680; Harris v. Harris, 5 Kan. 46; Hall v. Green, 87 Me. 122, 47 Am. St. Rep. 311, and note. (2) Between the time of the granting of the divorce, without an order requiring the defendant to maintain the child, and the time when such order was made, being the period covered by the expenditures sued for herein, there was no implied obligation on the part of defendant father to pay for the support voluntarily furnished by the plaintiff mother. 14 Cyc. 812; Finch v. Finch, 22 Conn. 411; Ramsey v. Ramsey, 121 Ind. 215, 23 N.E. 69, 6 L. R. A. 682; Husband v. Husband, supra; Hampton v. Alee, 56 Kan. 461, 43 P. 779; Chandler v. Dye, 37 Kan. 765, 15 P. 925; Harris v. Harris, supra; Brow v. Brightman, 136 Mass. 187; Rich v. Rich, supra; Burritt v. Burritt, 29 Barb. 124; Brown v. Smith, supra; Johnson v. Onsted, 74 Mich. 437, 42 N.W. 62. (3) This was a suit on an account, and the plaintiff should have been required to itemize her account. Brown v. Brown, 132 Ga. 712, 64 S.E. 1092, 131 Am. St. 235; Chandler v. Dye, 37 Kan. 765; Hampton v. Alee, 56 Kan. 461; Stanton v. Wilson's Executors (Con.), 3 Day, 37; 3 Am. Dec. 255, and note; McCloskey v. McCloskey, 93 Mo.App. 395; Rankin v. Rankin, 83 Mo.App. 339.
Fred W. Kelsey for respondent.
(1) The rule in Missouri is well settled that where the decree of divorce is silent on the subject of the children the liability of the father to support his minor children remains in full common law vigor, though the mother is awarded their custody. The presumption, therefore, is that where the decree is silent, the obligations were left just where they were before. Meyers v. Meyers, 91 Mo.App. 151; Viertel v. Viertel, 212 Mo. 562; Rankin v. Rankin, 83 Mo.App. 335; Lukowski v. Lukowski, 108 Mo.App. 204; Lusk v. Lusk, 28 Mo. 91; McCloskey v. McCloskey, 93 Mo.App. 398; Maxwell v. Boyd, 123 Mo.App. 334; Keller v. St. Louis, 152 Mo. 596. The support furnished by the mother because of the breach of the duty which the father primarily owed the child raised an implied legal obligation on his part to pay her. Porter v. Powell, 79 Iowa 151, 44 N.W. 295, 18 Am. St. Rep. 353; Mullally v. Scott, 162 Ill.App. 533; Keller v. St. Louis, 152 Mo. 596; Chester v. Chester, 17 Mo.App. 657; Robinson v. Robinson, 154 S.W. 162; White v. White, 154 S.W. 872; Rankin v. Rankin, 83 Mo.App. 335; McCloskey v. McCloskey, 93 Mo.App. 393. The pleadings in this case were sufficient. White v. White, 154 S.W. 872; Mfg. Co. v. Mitchell, 38 Mo.App. 321; Strauss v. Transit Co., 102 Mo.App. 644; Bank v. Cochran, 87 P. 855.
--The plaintiff obtained a divorce in the circuit court of Jasper county on June 14, 1907, and the custody of the child was awarded to the plaintiff, the decree being silent as to its maintenance. On June 4, 1912, plaintiff filed her motion asking the circuit court of said county to so modify the decree as to require the defendant to pay in the future for the child's support, maintenance and education. The motion was sustained and the allowance fixed at $ 500 per year. [See Robinson v. Robinson, 168 Mo.App. 639, 154 S.W. 162.] On August 3, 1912, the plaintiff brought this action in the same court to recover from the defendant the sum of $ 3000 on account of the support, maintenance and education of their minor child from the date of the divorce to June 4, 1912. A change of venue was taken in the case to the circuit court of Lawrence county, where, upon a trial to a jury, a verdict was returned in favor of the plaintiff for the sum of $ 1500, upon which judgment was entered and from which this appeal was taken by the defendant.
There are but a few questions in this case that we deem of sufficient importance to consider.
The defendant contends that the only remedy the plaintiff has, if any, is a motion in the divorce case to modify the decree. We do not believe that the defendant's position is sustained by the authorities in this State. The case involving the allowance for future maintenance was certified to the Supreme Court by this court on account of the decision being in conflict with decisions of the St. Louis Court of Appeals.
The case of Meyers v. Meyers, 91 Mo.App. 151, holds that where the decree is silent as to maintenance of the children, but awards the custody to the mother, that it leaves the defendant in the same position with respect to his duty to maintain the children as he was before the decree was entered. In Viertel v. Viertel, 212 Mo. 562, 567, 111 S.W. 579, this language is used: Citing the Meyers case, supra.
The Meyers case, supra, was overruled, only upon the question of future maintenance, in Seely v. Seely, 116 Mo.App. 362, 91 S.W. 979, wherein it was held that as to future maintenance the divorced wife should recover in an action at common law for the money necessarily expended in the maintenance of the child. Touching upon the question of the right to maintain this action we refer to the following cases: Rankin v. Rankin, 83 Mo.App. 335; McCloskey v. McClosky, 93 Mo.App. 393, 67 S.W. 669; Lukowski v. Lukowski, 108 Mo.App. 204, 83 S.W. 274; and Keller v. City of St. Louis, 152 Mo. 596, 54 S.W. 438. None of these cases, it is claimed by the defendant, by reason of the particular facts involved, is directly in point upon the question of the method of procedure to enforce the collection of money expended for the maintenance of the child, but all of them, we think, do sustain the proposition that the original liability of the father to support the child is in no manner changed by reason of the divorce and, argumentatively, at least, that a common law action lies for money so expended by the mother. Some of the cases involve decrees of divorce rendered in other States and under such circumstances that no disposition could be made as to the custody of the children or their maintenance.
The defendant contended in the case involving allowance for future maintenance (Robinson v. Robinson, supra) that, there having been no order made relative thereto, there could be no modification of the decree upon that point, and in that contention he was sustained by the St. Louis Court of Appeals; and he is here now insisting that he could not be required to respond for the maintenance of the child on account of past expenditures except on an application to modify the decree. We shall not, however, rely on defendant's inconsistent position to justify our judgment herein.
It is also contended in his behalf that the tribunal which granted the divorce and awarded the custody of the child is the only one in which any further orders should be made touching the subject-matter of the custody and maintenance of the child as there all questions concerning the relative situations of the parties can be fully considered and an equitable disposition thereof made. We are of the opinion, however, that if the exigencies of the situation are to be a controlling factor in the determination of this case, that the argument strongly predominates in favor of the plaintiff. The obligation resting exclusively upon the father to maintain the child and the custody having been awarded to the mother, she, under the imperative demands of the situation thus imposed upon her, in using her own money to discharge the obligation of the father in this behalf, unquestionably stands in an attitude calling for much more favorable consideration than would a stranger. Unquestionably if a stranger had discharged this duty for the father, a common law action would have been proper. The child has received the benefits of the expenditure and, therefore, its interest and welfare are entirely eliminated from the case and there is nothing remaining except the question of the civil liability of the defendant to the plaintiff. There is no question involved that was originally an issue in the divorce case. Under the authorities, the decree of divorce being silent as to the maintenance of the child, the primary liability of the defendant remains as before, and if there were any peculiar conditions or...
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