Evans v. Evans

• Decision Date: 18 November 1911
• Parties: EVANS. v. EVANS.
• Court: Tennessee Supreme Court

140 S.W. 745

125 Tenn. 112

EVANS. v. EVANS.

Supreme Court of Tennessee.

November 18, 1911

Appeal from Circuit Court, Hamilton County; M. M. Allison, Judge.

Suit by E. L. Evans against R. H. Evans. From a judgment dismissing the suit, plaintiff appealed to the Court of Civil Appeals where the judgment was affirmed, and certiorari was granted to review that judgment. Reversed.

R. B Cooke and R. T. Wright, Jr., for plaintiff.

Maj. C R. Evans, for defendant.

GREEN J.

The plaintiff in error, Mrs. E. L. Evans, obtained a divorce from the defendant in error, R. H. Evans, a number of years ago in a Kentucky court.

The decree of divorce does not recite the grounds upon which it was obtained, but it appears to have been had at the suit of the wife, and by this decree the custody of a child born to this couple was awarded to the mother.

After securing the divorce, it seems that the wife went to New York, where she has since resided, and the husband went to Chattanooga, which has since been his home.

The little girl went with her mother to New York, and her father, from time to time, made contributions to her support. She often visited her father in Chattanooga, and spent some time with him there, where her grandmother also resided. The father provided for her while she was in Chattanooga.

In 1910 he sent her to Atlanta to school, at which place it appears that he paid the bulk of her expenses. The girl was then about 15 or 16 years of age. Along toward the close of the term, having received no communication from her father as to what his subsequent wishes were, she wrote to her mother for money to come to New York. This was forwarded by her mother, and the girl went to New York during the month of May, 1910, where she has since been with her mother.

In January, 1911, this suit was brought by the mother to recover from the father the sum of $450, alleged to be the amount required for the support and maintenance of the girl from April 8, 1910, to December 1, 1910.

This suit was dismissed by the circuit judge, and his action was affirmed by the Court of Civil Appeals. A writ of certiorari was granted by this court, and the case is here for review.

The action of the lower courts seems to have been based upon the case of Toncray v. Toncray, 2 Shan. Cas. 408. In that case Toncray's children left his home, and went to the home of certain relatives of theirs, and upon suit brought for the expenses of the children while at the home of these relatives, this court said that inasmuch as Toncray had a home of his own, where he was willing and able to provide for his children, he could not be held responsible for them, when they left him, refusing the support he offered them, and sought to render him liable for their maintenance elsewhere. This case of Toncray v. Toncray is no authority here. Mr. Toncray was entitled to the custody and control of his children. He had a right to keep them at home, to determine where they should stay, and to maintain them at the place of his selection.

In this case, the father, Evans, has no such right. The custody of this child was intrusted to her mother. Evans has no voice as to where she shall reside; but, by decree of court, the mother is made the arbiter of such matters. Therefore it avails Mr. Evans nothing to say that he was willing to take care of the child in Chattanooga, but not elsewhere. He has no right to control her whereabouts, and cannot make his duty to support her, if such duty exists, depend upon the place of the child's abode.

It results, therefore, that the sole question in this case is whether a father is liable for the support of his child, after divorce obtained at the suit of the wife, when no provision is made in the decree for its maintenance, but the custody of the child is awarded to the mother.

We are of opinion that the father is so liable, and unquestionably this view is taken in the majority of the recent decisions upon the subject, although some courts of high repute have reached the opposite conclusion.

A convincing case adopting the former position is Spencer v. Spencer, 97 Minn. 56, 105 N.W. 483. This case is reported and annotated in 2 L. R. A. (N. S.) 851, and also reported and more exhaustively annotated in 7 Am. & Eng. Ann. Cas. 901. In the latter volume cases are collected in a note from 14 states, supporting the case reported. Both annotators find that the weight of modern authority imposes upon the father the obligation of the child's support, and to this effect is the later case of Alvey v. Hartwig, 106 Md. 254, 67 A. 132, 11 L. R. A. (N. S.) 678, also reported in 14 Am. & Eng. Ann. Cas. 250, with a note containing other cases upon the subject.

All the authorities upon both sides of this question will be found to be collected in the annotated publications just cited. The cases are too numerous to permit of an attempt to review them here.

The reasons favoring the majority view are that the law of nature and the law of the land require of the father the support of his minor children. This is a definite and fixed obligation which both the children...