Desch v. Desch

• Decision Date: 05 May 1913
• Citation: 55 Colo. 79,132 P. 60
• Parties: DESCH v. DESCH.
• Court: Colorado Supreme Court

132 P. 60

55 Colo. 79

DESCH v. DESCH.

Supreme Court of Colorado

May 5, 1913

Error to District Court, Logan County; H. P. Burke, Judge.

Action by M. Adah A. Desch against Conrad Desch. Verdict for defendant, and plaintiff brings error. Reversed in part and remanded, with directions.

The parties to this proceeding were divorced at the suit of plaintiff in error, based upon the ground of cruelty of the defendant in error. The decree awarded the sole care custody, and control of their daughter (a minor) to the plaintiff. The decree made no provision for the support of the daughter. From and after the decree, she remained continuously in the custody of the mother, who paid all the expenses of her support, aided, in a measure, by contributions of the father from time to time. Plaintiff brought an action to recover from defendant the amounts reasonably and necessarily paid out by her for the child's support subsequent to the date of the decree above the contributions of the defendant, and also to obtain an order requiring the defendant to make regular payments for the support of the girl during her minority. The court rendered judgment, fixing the amount the defendant should thereafter pay at stated intervals for the child's support, but refused to receive any testimony offered on the part of the plaintiff to establish the amount she had paid for the reasonable support and education of the child above the sums contributed by the defendant; the ruling of the court being that plaintiff could not recover for any sums paid for the maintenance of the child prior to the commencement of her action. Error is assigned on this ruling.

Percy S. Morris and O. N. Hilton, both of Denver for plaintiff in error.

James R. Paterson, of Sterling, for defendant in error.

GABBERT J. (after stating the facts as above).

The law imposes upon the father the obligation to support his minor children to the extent that they are not capable of earning their own livelihood. A decree of divorce at the suit of the wife for his misconduct which gives the custody of the children to her, but is silent as to their support, does not relieve him of this obligation. If, in such circumstances, he refuses or neglects to support them, the mother may recover from him, in an original action, a reasonable sum for necessaries furnished by her for their support, after such decree, commensurate with his means and station in life. The law implies a promise on his part to pay her for necessaries to this extent. Graham v. Graham, 38 Colo. 453, 88 P. 852, 8 L.R.A. (N. S.) 1270, 12 Ann.Cas. 137; Pretzinger v. Pretzinger, 45 Ohio St. 452, 15 N.E. 471, 4 Am.St.Rep. 542; Spencer v. Spencer, 97 Minn. 56, 105 N.W. 483, 2 L.R.A. (N. S.) 851, 114 Am.St.Rep. 695, 7 Ann.Cas. 901; Brown v. Brown, 132 Ga. 712, 64 S.E. 1092, 131 Am.St.Rep. 229; Lukowski v. Lukowski, 108 Mo.App. 204, 83 S.W. 274; Zilley v. Dunwiddie, 98 Wis. 428, 74 N.W. 126, 40 L.R.A. 579, 67 Am.St.Rep. 820; Gilley v. Gilley, 79 Me. 292, 9 A. 623, 1 Am.St.Rep. 307; Holt v. Holt, 42 Ark. 495; Plaster v. Plaster, 47 Ill. 290; Evans v. Evans, 125 Tenn. 112, 140 S.W. 745.

In the case at bar the decree of divorce was granted on account of the husband's misconduct, and only directs that the mother shall have the custody of the child without any provision for its support. This did not impose upon the mother, as between the father and herself, the obligation to support the child, nor did it release the defendant from that obligation, but leaves that duty which the law imposes upon him subsisting and unimpaired. We are therefore of the opinion that the court erred in ruling that plaintiff could not recover for expenses incurred in supporting the child prior to the commencement...