Carson v. Carson, 17939

• Decision Date: 11 January 1950
• Docket Number: No. 17939,17939
• Citation: 89 N.E.2d 555,120 Ind.App. 1
• Parties: CARSON v. CARSON.
• Court: Indiana Appellate Court

Page 555

89 N.E.2d 555

120 Ind.App. 1

CARSON v. CARSON.

No. 17939.

Appellate Court of Indiana, in Banc.

Jan. 11, 1950.

Bingham, Cook & Spilman, Indianapolis, James E. Bingham, Indianapolis, Claude M. Spilman, Jr., Indianapolis, for appellant.

New & New, Indianapolis, Edward F. New, Indianapolis, for appellee.

MARTIN, Presiding Judge.

This is an action brought by the appellee against the appellant on a contract entered into between appellant and appellee on November 28, 1936. The contract was in the nature of separation agreement and custody and support of the two minor children of the appellant and appellee. The agreement was incorporated and made a part of the court's decree of divorce. The appellee alleged in her complaint that the contract provided for payments of $5 per week for each child until he became twenty-one years of age and that the appellant failed to make $500 of said payments. That part of said agreement which was filed as Ex. 'A' and made a part of the complaint pertinent to the issues herein as follows:

'It Is Further Agreed By and between the parties that if and when such divorce is granted, the said wife is to have custody of the minor children, John Franklin Carson and Gordon E. M. Carson and that the Husband is to have the privilege of seeing said children at any reasonable time.

'It Is Further Agreed by and between the parties that the said Husband shall pay as support for said minor children, during their minority, the sum of Five Dollars ($5.00) a week for each child, said payments to cease and terminate upon the said children attaining the age of twenty-one (21) years.

'It Is Further Agreed by and between the parties that should either of said children die before reaching the age of twenty-one (21) years, the said payments for and on behalf of the child so dying, shall cease and terminate with the death.

'It Is Further Agreed by and between the parties that in the event of the death of the said wife, the hereinabove set out payments to be made by the Husband to the Wife, shall cease and terminate as of the date of her death.

'It Is Further Agreed by and between the parties that the Wife is to be permitted to reside in the house located at 4451 Carrollton Avenue, Indianapolis, Indiana until January 1st, 1937 and that she will remove herself and her belongings from said premises on or before said January 1st, 1937.

'It Is Further Agreed by and between the parties that the Husband will continue to carry sufficient insurance upon his life so that the terms of this agreement, regarding payments to the Wife and to her for the benefit of the children, will be carried out in full in the event of the death of the Husband before the completion of the payments herein specified.'

The appellant filed the Second Amended Paragraph Four of Answer alleging that the appellant paid to the appellee the amount of $5 per week for the use and benefit of their minor child, Gordon Carson from the time of their divorce until February 15, 1943, when said Gordon Carson entered the Armed Forces; that said Gordon Carson reached the age of twenty-one years while in said Armed Forces and that during the time said Gordon Carson was in the Armed Forces this appellee did not lay out and expend the amount of $5 per week for support of said Gordon Carson and that the appellee has been paid in full on her said contract.

The decree of the court was in favor of the appellee on her amended complaint. The appellant has assigned as error the overruling of his motion for a new trial. The reasons assigned in the motion for a new trial, some of which present no question however, but they do present the following questions:

(1) The finding of the court is not sustained by sufficient evidence.

(2) The amount of recovery assessed by the court is excessive.

The following are additional assignments of errors:

(2) The court erred in sustaining plaintiff's demurrer to defendant's Amended Paragraph II of Answer.

(3) The court erred in sustaining plaintiff's motion to strike out defendant's Amended Paragraph II of Answer.

(4) The Court erred in sustaining plaintiff's demurrer to defendant's Paragraph III of Answer.

(5) The Court erred in sustaining plaintiff's demurrer to defendant's paragraph IV of Answer.

(6) The Court erred in overruling defendant's motion to introduce additional evidence.

The evidence discloses that the appelland paid $5 per week for each by regularly with reference to John until John was twenty-one years of age. After John became twenty-one, the appellant paid $5 per week for the support of Gordon Carson through the Clerk's Office until October 1942. Two years later he made sixteen payments of $5 each, totalling $80. He paid a total of $2842 which made all of the appellant's payments in full until Gordon Carson went into the military service of the United States Army February 15, 1943 and said Gordon Carson remained in the Army until after he was twenty one years of age. Prior to Gordon Carson going into the Army, the appellee spent on the two boys approximately $1,974 for groceries, $650 for clothing, $75 for doctor bills, $175 for carfare, $320 for school lunches, $100 for books and school supplies, $275 for recreation, $153 for coal, $91 for insurance, $1500 for rent, $75 for dental bill, $22 gas bills, $105 light bills and approximately $75 on Gordon Carson while in the Army. The appellee expended a total of $5,634; that the appellee spent out of her own money for the support of the boys $2,792 in addition to what she received from the appellant.

The appellant urged the fact that appellant's son, Gordon Carson, entered the Armed Forces of the United States, resulting in a complete emancipation of said minor and appellant was thereafter relieved of the obligation to contribute to the support of said minor son.

It is our opinion that no emancipation of the son has occurred by reason of his entering the Armed Forces to release the father from the performance of his contractual obligations. Although, on occasion 'emancipation' has been used to signify complete severance of the legal rights and liabilities attendant upon the relationship of parent and child, it has frequently and more accurately been held to operate merely as a relinquishment to the child of its earnings, free of any of the rights or claims thereto in favor of the parent. 'Emancipation' does not operate to release a parent from liabilities and obligations involving his child which he has expressly covenanted to perform. The doctrine of emancipation has as its basis sound principles of public policy and has been applied by the courts, for the most part, to protect the best interests of children and those who have provided them with necessaries when their parents have failed to do so. The entering of the child into the Armed Services does not constitute a voluntary surrender of control on the part of the parent. Harwood v. Harwood, 1944, 182 Misc. 130, 49 N.Y.S.2d 727.

The appellee brought this action to recover under a contract. The entering of Gordon Carson into the Armed Services results only in a suspension of any right appellee may have to her son's services during such...