Campbell v. Campbell

• Decision Date: 13 May 1942
• Docket Number: 15411.
• Citation: 20 S.E.2d 237,200 S.C. 67
• Parties: CAMPBELL v. CAMPBELL et al.
• Court: South Carolina Supreme Court

20 S.E.2d 237

200 S.C. 67

CAMPBELL v. CAMPBELL et al.

No. 15411.

Supreme Court of South Carolina

May 13, 1942

Hart & Moss, of York, and Wilson & Wilson, of Rock Hill for appellant.

Finley & Spratt, of York, for respondents.

FISHBURNE Justice.

The principal question to be determined in this appeal is whether a minor child can maintain an action either at law or in equity against a parent for maintenance and support. A subsidiary question is, whether counsel fees for services rendered on behalf of the minor child in such action may be awarded by the court.

This cause was originally brought by I. J. Campbell, Jr., against his wife, Elizabeth Moore Campbell, for the annulment of their marriage. The circuit court adjudged the marriage valid and legal, and upon appeal we affirmed the judgment. Campbell v. Moore, 189 S.C. 497, 1 S.E. 2d 784. In his report the referee to whom the cause was referred recommended that the child of the marriage, Lillian Johnson Campbell, be made a party to the cause in order that a full inquiry might be made as to the proper amount to be paid by the appellant for her support and maintenance during minority. This recommendation was approved by the circuit court, and we affirmed in Campbell v. Moore, supra. Thereafter by proper order the infant was made a party, a guardian ad litem appointed, and a petition filed setting up her claim for maintenance and support, to which the appellant filed an answer.

When the issues were referred the second time to the referee considerable testimony was taken, and he recommended that I. J. Campbell, Jr., the appellant and father of the infant, should be required to pay for her maintenance and support a graduated amount, commencing at $15 per month, and increasing with the age and needs of the child. He also recommended that her attorneys be allowed a fee of $500 for their services, to be paid by appellant, and that he pay all costs of the action.

Upon appeal, the circuit court modified the findings of the referee, and ordered judgment to be entered against appellant in the sum of $1200, which covered the period from the date of the minor's birth, on January 18, 1935, to the date of the hearing, September 18, 1941, based upon $15 per month, with interest after September 18, 1941, until paid. It was further ordered that appellant pay the sum of $15 per month after September 18, 1941, for the maintenance and support of his daughter until the further order of the Court. The case was left open with leave to either party to thereafter apply for a modification of the order because of changed conditions. The lower court likewise determined that a fee of $200 for the attorneys representing the infant was reasonable and proper, and ordered that judgment be entered for this amount against the plaintiff. From this judgment he appeals and raises the issues which we have stated, which were likewise raised and argued before the referee and the circuit court.

A brief factual background will be enlightening.

I. J. Campbell, Jr., and Elizabeth Moore were married on September 7, 1934. They were residents of Clover, in York County, and at the time of their marriage he was 19 years of age and she was 17. The infant, Lillian Johnson Campbell, is a child of this marriage, and at the time this case was tried she was about five years of age. Immediately after the marriage, in 1934, the plaintiff abandoned his wife, moved his residence to the State of North Carolina, and there obtained a divorce. It is admitted that he has never contributed anything to the support and maintenance of his infant child. The mother, Elizabeth Moore Campbell, and the child lived in the home of her parents. She and her child were without worldly means, and they were supported by her brothers and sisters. When the minor was about three years of age, the mother left her in the care of her grandparents, Mr. and Mrs. H. E. Moore, and went to Charlotte to obtain work, where she is now employed and making hardly enough to support herself.

One ground of appeal raises the point that the award for support is excessive in view of the earnings and property holdings of the appellant. We have reviewed the record thoroughly, and entertain no doubt of the propriety of this award under the facts. It is based upon competent evidence, and the decree of the court thereabout should not be disturbed.

The appellant takes the position that a minor child cannot by any form of action maintain a civil suit against the father for maintenance and support in the absence of a statute authorizing it, and that an award for support may be made only as an incident to a divorce or alimony proceeding, or be enforced by criminal proceedings under Section 1123, 1932 Code.

The question has never been directly passed upon in this State, but there is some support for this contention in other jurisdictions. The case of Rawlings v. Rawlings, 121 Miss. 140, 83 So. 146, 157, 7 A.L.R. 1259, decided in 1919, which is cited and relied upon heavily by the appellant, undoubtedly supports his view, but we cannot agree with the reasoning and holding in that case. The decision in the Rawlings case is apparently based upon the theory that the obligation of a parent to support his child is merely moral. It was considered that a direct suit by an infant against a parent for support and maintenance should not be encouraged, since such a suit would adversely affect the repose of society; would tend to disturb the cordial relationship that should exist by virtue of blood ties, and render parental discipline ineffective.

The opinion in the case of Rawlings v. Rawlings, supra, was rendered by a divided Court. Speaking for the minority upon the principle under discussion, Mr. Justice Ethridge, in his dissenting opinion,...