Bondies v. Bondies

• Decision Date: 25 November 1913
• Docket Number: Case Number: 2985
• Citation: 40 Okla. 164,1913 OK 682,136 P. 1089
• Parties: BONDIES v. BONDIES.
• Court: Oklahoma Supreme Court

1913 OK 682

136 P. 1089

40 Okla. 164

BONDIES v. BONDIES.

Case Number: 2985

Supreme Court of Oklahoma

Decided: November 25, 1913

Syllabus

¶0 DIVORCE--Support of Child--Rights Between Divorced Parents. Section 4367, Rev. Laws 1910: "A parent entitled to the custody of a child must give him education and support. * * *" Section 4377, Id.: "A parent is not bound to compensate the other parent * * * for the voluntary support of his child without an agreement for compensation." Where a mother is awarded custody of a minor child in a divorce proceeding, and the decree is silent as to the support of such child and the father has not agreed to do so, and the mother maintains and supports the child for a number of years and has made no effort to secure from the court granting the decree an order requiring the father to support such child, such support is voluntary, and she cannot recover from her former husband any sums in that behalf laid out and expended, but the father may be required to contribute to the support of such minor child from and after the commencement of an action for that purpose, and such action may be by motion or supplemental petition in the original proceeding, or by an independent suit.

J. M. Crook, for plaintiff in error.

E. G. Senter and Utterback, Hayes & MacDonald, for defendant in error.

LOOFBOURROW, J.

¶1 On January 6, 1911, defendant in error, Helen Bondies, commenced an action against William Bondies in the district court of Bryan county by filing a petition, alleging, in substance, as follows:

"That Helen Bondies is a resident of Dallas county, Tex., and defendant, William Bondies, is a resident of Bryan county, Okla. That they were married in November, 1900. That as a result of said marriage the minor son, Walton Bondies, was born January 11, 1902. That they were divorced by decree of the district court of the Forty-fourth judicial district of Texas in Dallas county on the 31st day of July, 1902. That in said decree the custody of said minor child, Walton Bondies, was awarded to the plaintiff. That since said time plaintiff has had the custody of said minor, and has borne the entire expense of his support and maintenance except a certain period that W. Porter, of Dallas, Tex., the father of the plaintiff, has furnished board and lodging to said child. That the defendant, William Bondies, has contributed, during said time, $ 180 to the maintenance of said child. That with the exception of said small contribution by the said defendant, he has persistently refused to recognize the legal and moral claim of his son upon him for his support and maintenance, though he has, at all times, been well able to maintain him in comfort and provide for all of his necessities, and although he has often been by the plaintiff herein requested and importuned to aid in the support and maintenance of said child. That the plaintiff herein has reared said child, and has given him care and attention and clothing, and such other means as his circumstances in life demanded, and has supplied his needs and necessities during the period above stated. That the reasonable value of said support and maintenance is $ 300 per year, or $ 3,125 for said entire period. * * * And though the plaintiff has often been requested to pay and to contribute to said cause of his said minor son, he has absolutely refused and still refuses so to do, except as heretofore stated. That plaintiff is not as able to provide for said child as the defendant herein. Plaintiff further shows that said defendant has never shown any interest for the welfare, comfort, care, or maintenance of his said son, but has been totally indifferent toward him. Plaintiff prays judgment against the defendant for the sum of $ 3,125 as compensation for the support and maintenance of said Walton Bondies, the said minor son of the parties, and to cover the expense and trouble incurred by her on said account. Plaintiff further asks that the court make an order requiring and commanding the defendant to pay over to the plaintiff on the first day of each month the sum of $ 40 until the said Walton Bondies shall become of age, said $ 40 per month to be for the use and benefit of said minor and to assist the said plaintiff in caring for and supporting and maintaining the said Walton Bondies during his minority. * * *"

¶2 To this petition plaintiff in error filed a demurrer, which the court overruled. Thereafter plaintiff in error filed an answer, in substance: First. A general denial, saving specific admissions. Second. The statute of limitations of Texas. Third. That he agreed to and did pay to the defendant in error in 1902 the sum of $ 3,000 for the maintenance of said child, and that said funds have not been properly conserved; that defendant in error is now unable to raise, maintain, and educate said child; that plaintiff in error is ready, willing and able to properly care for, maintain, and educate his son; that he has reached an age that requires the care and admonition of a father, etc.; and that the custody of the child be awarded to him. Further answering, defendant specially pleads the statute of limitations of Oklahoma. The defendant in error replied with a general denial, and further stated that at the time the decree of divorce was rendered awarding the custody of the child to the plaintiff, Helen Bondies, both of said parties were residents and citizens of the state of Texas and appeared in person and by attorneys in said cause; that Helen Bondies is entitled to retain the custody of said minor child until said judgment shall be modified or changed by the court which rendered it; that she has been ever since and is now a citizen of Dallas county, Tex. It is conceded that the decree of divorce was silent as to support and maintenance of the child. The defendant in error was called as a witness in her own behalf and her testimony constitutes all of the evidence in the case. A verdict was returned, and judgment entered in favor of the defendant in error for the sum of $ 608, and from such judgment plaintiff in error appeals, and assigns as error:

"First. The court erred in overruling the demurrer of the defendant that said petition does not state facts sufficient to constitute a cause of action. Second and third. The court erred in overruling the motion for new trial herein because the verdict therein was and is contrary to law, and in admitting, over the objection of the defendant, evidence prejudicial to the defendant, and which was incompetent, irrelevant, and immaterial. Fourth. Error in the second paragraph of the court's charge to the jury, which is as follows: 'No. 2. It is the duty of the father of a minor child to give his child such support and education as is suitable to his circumstances and station in life, unless the father is unable to do so, then in that event the mother must assist him to the extent of her ability. In the case at bar, if you should find from a preponderance of the evidence that plaintiff, Helen Bondies, has expended money in buying clothing, medicines, and paying doctor bills, and for washing, for tuition, and school books, and has devoted her own time to the care and training of the minor child of plaintiff and defendant to the extent that she has been unable to earn as much as she otherwise would have done, and you find that these matters were necessary for the proper care, attention, and maintenance of said child, then you will find in favor of the plaintiff in such amount or amounts as you believe from the testimony said expenditures and services were reasonably worth. It is the duty of the mother, where she has the care and custody of her child, to render it the usual and ordinary attention that a mother owes her child, and she would not be entitled to recover for the mere care and attention that every mother owes her child other than such amount or amounts as you may find, if any, that she has been pecuniarily deprived of by reason of her inability to earn the wages that she would have otherwise earned had she not the care and charge of said child. If you should find for the plaintiff, you will fix her recovery at such an amount or amounts as you believe from the evidence that she is reasonably entitled to recover for the moneys expended by her and the services rendered as herein set forth, not exceeding the sum of $ 300 per year, for and during the time since January 6, 1908, up until the present time.'"

¶3 Sections 4367, 4376, 4377, and 4968, Rev. Laws 1910, respectively, provide as follows:

"The parent entitled to the custody of a child must give him support and education suitable to his circumstances. If the support and education which the father of a legitimate child is able to give are inadequate, the mother must assist him to the extent of her ability."

"If a parent neglects to provide articles necessary for his child who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries and recover the reasonable value thereof from the parent."

"A parent is not bound to compensate the other parent or a relative for the voluntary support of his child without an agreement for compensation, nor to compensate a stranger for the support of a child who has abandoned the parent without just cause."

"When a divorce is granted, the court shall make provision for guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect, whenever circumstances render such change proper, either before or after final judgment in the action."

¶4 When a decree of divorce is granted, awarding custody of the child to the mother, without any provision in the decree for the maintenance of the child, and in the absence of an express contract, a great many authorities hold that the mother can maintain an action against the father for money voluntarily paid by her for the child's support, and a great many authorities are to...