Courtright v. Courtright

• Decision Date: 24 April 1879
• Citation: 40 Mich. 633
• Court: Michigan Supreme Court
• Parties: Theresa Courtright v. Aaron Courtright

40 Mich. 633

Theresa Courtright v. Aaron Courtright

Supreme Court of Michigan

April 24, 1879

Submitted April 10, 1879

Case made from Kent. Submitted April 10. Decided April 24.

Judgment affirmed with costs.

E. S Eggleston for plaintiff.

George Luton for defendant.

Graves J. The other Justices concurred.

OPINION

Graves J.

This is a case made after judgment. The facts were found by a referee who reported adversely to the plaintiff and upon her exception the circuit court overruled the referee in point of law and awarded judgment upon his finding of the facts in favor of the plaintiff for $ 250. The defendant charges error.

The parties were formerly husband and wife; but having been divorced they entered into a written agreement as follows:

"It is agreed by and between Aaron Courtright and Theresa Courtright (who is divorced from Aaron) as follows: that Frank, Kittie, Nellie, of their children may remain and stay with said Theresa such portion of time as they shall naturally desire henceforth after this date, with the express understanding and agreement on the part of Theresa Courtright that she will make no charge or claim against the said Aaron Courtright for their support, and in consideration thereof the said Aaron agrees that they may remain as aforesaid, and that he will of his own free will do for them towards their support, maintenance and education what seems to him right, and at least he will provide in store pay and provisions each year for five years an amount in value equal to fifty dollars.

Witness our hand February 28th, 1871.

Aaron Courtright.

Theresa Courtright."

The plaintiff's action depends on this instrument.

The daughter Kitty remained with her mother about a year, Nellie during a chief portion of six years, and the son Frank about three years.

The defendant expended for the benefit of the children $ 434.11, but paid nothing to the plaintiff. Whilst the children were with her, however, she was called on to give them her personal care and personal protection, and this duty was wholly distinct from the duty to support them.

The defendant was subject to a legal obligation to provide for their support, and as against the public and the children he could not throw off the duty.

The plaintiff was competent to agree that she would make no claim against him for their support, and she so promised. But this did not necessarily touch her chance to...