Davis v. Davis

• Decision Date: 14 December 1954
• Docket Number: No. 48561,48561
• Citation: 67 N.W.2d 566,246 Iowa 262
• Parties: Robert Harold DAVIS, by Mildred Grant, his natural guardian and next friend, Petitioner-Appellee, v. Harold DAVIS, Respondent-Appellant.
• Court: Iowa Supreme Court

Page 566

67 N.W.2d 566

246 Iowa 262

Robert Harold DAVIS, by Mildred Grant, his natural guardian and next friend, Petitioner-Appellee, v. Harold DAVIS, Respondent-Appellant.

No. 48561.

Supreme Court of Iowa.

Dec. 14, 1954.

Ted Sloane, and Don Hise, Des Moines, for respondent-appellant.

Lorna L. Williams, Clyde L. Herring, County Attorney, and James A. Lorentzen, Asst. County Atty., Des Moines, for petitioner-appellee.

GARFIELD, Chief Justice.

This proceeding involves the construction of some of the provisions of chapter 252A, Codes 1950, 1954, I.C.A., entitled 'Uniform Support of Dependents Law', enacted in 1949 by the 53d General Assembly as chapter 103.

Petitioner, age 30, brought the action under chapter 252A by his mother as natural guardian and next friend against his father to compel him to furnish support. Petitioner's parents were divorced in 1929 when he was six. His father (respondent herein) was ordered to pay child support of $5 a week until the boy became 18 and to furnish all clothing, medical services and educational supplies. Respondent married another woman in 1930. The mother married another man in 1931. The boy (Robert) has continued to live with his mother and, until her death in 1953, his maternal grandmother.

The pleadings admit petitioner is unable to maintain himself, an illness in childhood impaired a portion of his brain, he has never been--and is unable to be--employed. It appears without dispute Robert has no means, is a victim of cerebral meningitis since he was a year old, requires constant attention, and his mother devotes virtually all her time to his care. Her total income of $157 a month, allotted to her from her present husband's army pay, is insufficient for her own and petitioner's support. Respondent has not seen Robert nor contributed to his support since about July 1949.

Respondent is a clerk in the Des Moines postoffice where he has been employed 30 years. His salary in 1952 was $4370. He owns 12 acres in Polk City on which he lives. He rents out nine acres of this ground. Respondent also owns a half interest in 160 acres in Canada. He inherited his realty. It is not incumbered.

Trial was in equity. It was decreed respondent pay $50 a month toward petitioner's support. Respondent has appealed to us.

I. Respondent contends a proceeding to compel support of an adult son by his father, both of whom reside in Iowa, cannot be maintained under the provisions of Code chapter 252A which, it is said, was passed for the specific object of forcing an absconding father to support his family. It is argued chapter 252A is inapplicable where both dependent and respondent live in Iowa since suit may be brought under Code chapter 252 to compel support. The effect of the argument is that chapter 252 provides the exclusive remedy and there is no remedy under 252A, where both parties reside in Iowa.

We think the argument is unsound. Its acceptance would require us to nullify many provisions of chapter 252A which clearly indicate it was intended to apply where, as here, both child and parent are residents of Iowa.

It is true, as respondent suggests, that generally at common law a parent's obligation to support his child ends when the latter becomes of age. But there is an important, widely recognized exception to this rule where the child because of weak body or mind is unable to care for itself upon attaining majority. The obligation to support such a child ceases only when the necessity for the support ceases. Courts throughout the land have so held emphatically and eloquently. This case plainly falls within this exception to the general rule.

In support of what we have just said see Pocialik v. Federal Cement Tile Co., 121 Ind.App. 11, 97 N.E.2d 360, 363 ('The tendency in most jurisdictions in this country where the question has arisen * * * is to find that there is an obligation to support defective children who are unable to support themselves upon attaining their majority.'); In re Glass' Estate, 175 Kan. 246, 262 P.2d 934; Williams v. West, Ky., 258 S.W.2d 468, 473 (holding the decided weight of authority is it is not necessary that the adult child live in the father's home); Breuer v. Dowden, 207 Ky. 12, 268 S.W. 541, 42 A.L.R. 146, and Annotation 150, 154; Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31, 1 A.L.R.2d 905, and Annotation 910, 921; Van Tinker v. Van Tinker, 38 Wash.2d 390, 229 P.2d 333, 334; 39 Am.Jur., Parent and Child, section 69; 67 C.J.S., Parent and Child, § 17.

See also Anderson v. Anderson, 124 Cal. 48, 56 P. 630, 71 Am.St.Rep. 17; Perla v. Perla, Fla., 58 So.2d 689, 690; Borchert v. Borchert, 185 Md. 586, 45 A.2d 463, 465, 162 A.L.R. 1078, 1081 ('The doctrine of liability in a father to support an incapacitated adult child seems to have permeated the courts of this country, in many cases without any statutory enactment to support it.'); Commonwealth ex rel. Groff v. Groff, 173 Pa.Super. 535, 98 A.2d 449, 450.

Respondent's argument requires a consideration of chapter 252 entitled 'Support of the Poor', as well as 252A, under which this action was brought. Section 252.1 in chapter 252 defines 'poor person' as 'those who have no property, exempt or otherwise, and are unable, because of physical or mental disabilities, to earn a living by labor'. Section 252.2 provides that parents of a poor person shall 'relieve or maintain such person in such manner as, upon application to the township trustees * * *, they may direct.' Section 252.6 states, 'Upon the failure of such relatives so to relieve or maintain a poor person who has made application for relief, the township trustees * * * may apply to the district court * * * for an order to compel the same.' (Emphasis added.)

We have held application to the township trustees and action by them thereon are initial steps which must be taken before liability attaches under chapter 252. Wright County v. Hagan, 210 Iowa 795, 800, 231 N.W. 298. Also action of the trustees in ordering or denying relief to a poor person under chapter 252 is not subject to review in court where they act in good faith or without abuse of discretion. Cherokee County v. Smith, 219 Iowa 490, 493, 258 N.W. 182; Hardin County v. Wright County, 67 Iowa 127, 131, 24 N.W. 754.

Section 252.7 provides that where the trustees apply to the district court it may order relief or maintenance only from relatives 'who shall be able' to furnish it. And section 252.12 states, 'In all cases the party sought to be charged with the support of another may demand a jury trial upon the question of his obligation and ability to render such support, * * *.' The effect of these provisions is that chapter 252 requires support only from parents or other relatives who are able to furnish it. Cherokee County v. Smith, supra, 219 Iowa 490, 494-496, 258 N.W. 182. As we shall point out presently, chapter 252A contains no such limitation as applied to such a case as this, where the petitioner and respondent both reside in the same state. See section 252A.3(3).

It is evident respondent's attorneys insist petitioner's sole remedy is to proceed under chapter 252 in the hope he can persuade the township trustees or an overseer of the poor (see section 252.4) he is unable to assist in the relief of this unfortunate son. His argument states: 'It is and has been appellant's contention that the public officers under Chapter 252 would not institute any legal action against him in his present financial circumstances, seeking to hold him responsible for the support of his son in any amount.'

It appears somewhat doubtful at best that petitioner could have obtained support from respondent by applying to the township trustees or an overseer of the poor under chapter 252. However that may be, we are clear he should not be relegated to such a course. Even before chapter 252A was enacted we held the relief provided by chapter 252 was neither exclusive nor adequate in a suit by the mother of a minor against the divorced father to require him to contribute to the child's support. Addy v. Addy, 240 Iowa 255, 263, 264, 36 N.W.2d 352, 357, 358, where we say concerning chapter 252 and other statutory provisions:

'The father's duty of support is not measured by these statutes. It is the right of the child to receive and the obligation of the parent to furnish support to the end resort to any of these statutes need not be had.

'The special statutory proceedings to which defendant refers do not purport to be exclusive and should not be so construed. Nor is the relief there provided adequate. Several decisions heretofore cited in support of our conclusion reject arguments similar to defendant's here. See for example Campbell v. Campbell, supra, 200 S.C. 67, 20 S.E.2d 237.'

See also Simonds v. Simonds, 81 App.D.C. 50, 154 F.2d 326, 13 A.L.R.2d 1138, and Annotation 1142. It is unimportant here that the Addy child was a minor in view of respondent's continuing duty to support petitioner because of his physical and mental inability, throughout life, to care for himself. See authorities first cited in this division hereof.

In view of respondent's contention that chapter 252A was enacted solely to provide civil relief from an absconding parent and it has no application where both parent and child reside in Iowa it seems necessary to set out several provisions of the act which indicate a contrary legislative intent. Emphasis is supplied by us.

The title of chapter 252A is, 'An Act authorizing and prescibing the procedure for civil proceedings to compel the support of dependent wives, children and poor relatives within and without the state.'

Section 252A.1 states: 'The purpose of this uniform chapter is to secure support in civil proceedings for dependent wives, children and poor relatives from persons legally responsible for their support.' It does not add 'where such relief was heretofore nonexistent' nor does it say 'where petitioner and respondent are in different states.' Of course...