Bowling v. Robinson

• Decision Date: 12 February 1960
• Citation: 332 S.W.2d 285
• Parties: Garnet Cline BOWLING, Statutory Guardian for Palmer Douglas Bowling, Appellant, v. Clyde L. ROBINSON, Administrator of the Estate of Dudley Bowling, Deceased, et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 285

332 S.W.2d 285

Garnet Cline BOWLING, Statutory Guardian for Palmer Douglas Bowling, Appellant, v. Clyde L. ROBINSON, Administrator of the Estate of Dudley Bowling, Deceased, et al., Appellees.

Court of Appeals of Kentucky.

Feb. 12, 1960.

Dan Jack Combs, Harry C. Campbell, Pikeville, for appellant.

F. M. Burke, Henry D. Stratton, Francis D. Burke, Clyde Mullins, Donald Combs, Pikeville, for appellees.

STANLEY, Commissioner.

Pursuant to CR 76, we have an appeal upon an agreed statement of a separate issue presented and decided below in a suit to settle a decedent's estate. The question is thus presented.

'Where in connection with a divorce proceeding the husband and wife agree on the care and custody of the children and the amount payable for their support and maintenance, which agreement is subsequently incorporated in the divorce judgment and which judgment provides that it shall be subject to further orders of the court and thereafter the husband dies, is the obligation to pay for the support of the children as provided in the agreement and judgment terminated by the death of the father, or does it represent a continuing obligation of the deceased father enforceable against his estate.'

The circuit court adjudged that the obligation of Dudley Bowling, the father of two children, under such an agreement and judgment was terminated by his death, and disallowed the claims of Mrs. Garnet Cline Bowling, their mother and statutory guardian, for $4,312.50, representing the aggregate of payments of $62.50 for a period of 69 months for Palmer Douglas Bowling until he becomes 21 years old, and $1,937.50, representing total payments of the same sum for 31 months for Eugene Bowling when he will reach his majority. The appeal, however, is only by and in behalf of Palmer Douglas Bowling.

The judgment of divorce of the father and mother entered on November 13, 1946, 'approved and confirmed' a separation agreement of the parties settling their respective property rights and concerning the custody of their four children. The agreement was incorporated in the judgment. The instrument provided that the wife should have the care and custody of Eugene and Palmer and the husband of two other children 'subject to the further orders of the court' and the right of visitation. The father, Dudley Bowling, agreed to pay the mother for the two children awarded to her $125 each month for their 'care, support and education * * * until the further orders of the court.' He agreed in addition to pay their medical and hospital bills. The father continued to pay $125 monthly until January 15, 1957, when Eugene became 18 years old. He then reduced the payments to $62.50 a month.

Dudley Bowling was married three times, Mrs. Garnet C. Bowling being his second wife. He and his latest wife, Mrs. Fern Bowling, met simultaneous death in an airplane crash. He was survived by ten children, one by his first, four by his second, and five by his third wife. He bequeathed $500 to his son Eugene and $750 to his son Palmer. In disallowing the claims of their mother and guardian on the agreement, the court stated that if they should be allowed, the other children would receive little or nothing from their father's estate; and that the allowance of the claims would be in direct conflict with the provision of the decedent's will.

Decisions of other courts as to whether the obligation of a father to support his child under a judgment or separation agreement will survive against his estate as to subsequently accruing installments are variable, the variableness principally arising from the difference in particular terms of the judgments or agreements. Annotation, Death of Parent as Affecting Decree for Support of Child, 18 A.L.R.2d 1127; 17A Am.Jur., Divorce and Separation, Sec. 865; 27B C.J.S. Divorce Sec. 323, p. 729. Our two cases dealing with the subject presented different conditions and required different conclusions. Sandlin's Adm'x v. Allen, 262 Ky. 355, 90 S.W.2d 350; and Arnold v. Arnold's Ex'r, 314 Ky. 734, 237 S.W.2d 58.

The circuit court in the present case applied the Sandlin opinion. The appellant contends the Arnold case is controlling.

The claim and facts in the Sandlin case are identical with these...