Brown v. Brown
| Decision Date | 18 June 1909 |
| Citation | 64 S.E. 1092,132 Ga. 712 |
| Parties | BROWN v. BROWN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where the wife, on account of the misconduct of the husband obtains a decree granting her a divorce and awarding to her the custody of their minor child, and no question as to the support of such child by the father has been made or passed on, the father is not relieved of his legal obligation for a proper support of the child. If he fails or refuses to discharge this obligation, the mother in an original action may recover of the father the amount of expenditures made by her after such decree for a proper support of such child.
[Ed Note.-For other cases, see Divorce, Dec. Dig. § 295 [*]]
The petition was subject to special demurrer on the ground that it did not set forth with sufficient particularity the expenses incurred by the plaintiff in the support of the child.
[Ed Note.-For other cases, see Divorce, Dec. Dig. § 295. [*]]
Error from Superior Court, Banks County; C. H. Brand, Judge.
Action by M. O. Brown against Oscar Brown. Judgment for plaintiff, and defendant brings error. Reversed.
H. H. Perry, for plaintiff in error.
J. J. Strickland and Fletcher M. Johnson, for defendant in error.
The defendant in error brought suit against the plaintiff in error to recover from him the amount alleged to have been expended by her in support of their son. Among other allegations in the petition, the following, in substance, appears: At the September term, 1902, of Gwinnett superior court, a total divorce was granted her from the defendant, the present plaintiff in error, and by the terms of the decree the custody and control of the child were awarded to her. The question of alimony was not involved or passed upon in the divorce suit, and the plaintiff did not insist upon any judgment therefor. She has managed to support the child from the income from her property and by encroaching on the corpus thereof and with the proceeds of her labor. The plaintiff insists that the defendant "reimburse her for what she has paid out since the separation [in support of the child], the same amounting approximately to $1,200," and alleges that the defendant is able to do so. The plaintiff filed an amendment to the petition, alleging that "she has expended since the divorce was granted the sum of $1,200 for the board and support of their child Fred, the same being expenses for necessaries; that said necessaries were not furnished by said Oscar Brown, and she was compelled to furnish them in order to maintain said son; that said expenses has been an average of $20 per month, including board, clothing, medicinal attention, and other necessaries; that while at the beginning the expenses was possibly less, it has grown with his age." The defendant filed a demurrer on the ground that no cause of action was set forth and a special demurrer on the ground "that plaintiff fails to specify what article was furnished by her." After the plaintiff filed the amendment hereinbefore referred to, the defendant filed a demurrer to such amendment and to the petition as amended on general grounds, and because the "petition fails to state what the other necessaries are, and fails to state what expenses were incurred for tuition or medical services, or what items of clothing were furnished, or what expenses were paid for board, and fails to itemize or state any particulars of her said claim, or to show the time when or to whom any amounts were paid." The demurrers were overruled. A verdict was rendered for the plaintiff for $480, and a motion for a new trial was overruled. The defendant excepted to each of these rulings.
1. The defendant in error brought suit against the plaintiff in error for a divorce on the ground of habitual intoxication and obtained a verdict and decree for a total divorce. In the decree the custody of their minor child was awarded to the defendant in error, who afterwards brought this suit against the plaintiff in error, the father of the child, for an amount expended by her for the necessary support of the child, and obtained a verdict. The plaintiff in her petition alleged: "Your petitioner did not insist at the time on a judgment for alimony, for the reason that the said Brown promised he would contribute the necessary amount to pay the expenses of their child, and could do this better without a judgment against him than with one." This, together with other allegations, merely gave the reason why the plaintiff did not in the divorce proceedings seek alimony for the child; and a proper construction of the petition, in view of all the allegations, is that it does not set forth a suit on any express promise of the defendant to pay her for any support she might give the child after divorce was granted. In one of the grounds of the amendment to the motion for a new trial the plaintiff in error complains that the court committed error in charging the jury as follows: "The law imposes the obligation upon the father to support his children until majority; and the court instructs you that the plaintiff is entitled to recover, can recover in this case, against the defendant for what she has thus expended." In another ground of the amendment to the motion for a new trial the plaintiff in error contends that the court committed error in charging the jury as follows: The general demurrer filed by the defendant and the assignments of error upon the charges quoted make for determination the question as to whether or not a wife, who has obtained a verdict and decree of divorce from her husband, where the custody of the children has been awarded her in the decree, and the question as to the support of the child has not been passed on, can recover from the father the amount expended by her subsequently to the decree for the necessary support of such children. If the wife obtains a total divorce, she does not after the verdict and decree sustain the relation of wife to her former husband, and he is no longer under legal obligation to support her, except such support as may be imposed upon him in the divorce proceedings. After the verdict in the divorce case, the husband is not liable for necessaries furnished by third persons to the divorced wife, nor is she entitled to inherit any interest in his estate when he dies. A divorce between the husband and wife does not bar the children from being heirs of the deceased father, nor is there anything in our statute relieving such father from his legal obligation to support his children simply because there has been a divorce granted to his wife. Civ. Code 1895, § 2452, gives the court, in divorce proceedings, the right to award the custody of the children to the parent not in default; but under this section the court may award the custody to persons other than the parents, or to "guardians appointed by the ordinary." The father is primarily entitled to the custody of his children; but, if his conduct has been such as not to entitle him to their custody and to cause their custody to be awarded to some other person in divorce proceedings, this award of the custody to another by reason of misconduct on the part of the father of itself does not relieve him of his legal obligation to support his children. The fact that the custody of the children has been awarded to the mother does not change this rule. The fact that her former relation was that of wife to the father of the children could not relieve such father of his legal obligations to his children. Civ. Code 1895, § 2462, is as follows: "If the jury, on the second or final verdict, find in favor of the wife, they shall also, in providing permanent alimony for her, specify what amount the minor children shall be entitled to for their permanent support; and in what manner, who often, and to whom, and until when, it shall be paid; and this they may also do, if, from any legal cause, the wife may not be...
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