Gerk v. Gerk, 52155

• Decision Date: 14 July 1966
• Docket Number: No. 52155,52155
• Citation: 144 N.W.2d 104,259 Iowa 293
• Parties: Jerry GERK by his next friend, Lois Gerk, Appellee, v. Joseph A. GERK, also known as J. A. Gerk, Appellant.
• Court: Iowa Supreme Court

Page 104

144 N.W.2d 104

259 Iowa 293

Jerry GERK by his next friend, Lois Gerk, Appellee, v. Joseph A. GERK, also known as J. A. Gerk, Appellant.

No. 52155.

Supreme Court of Iowa.

July 14, 1966.

Baken & Greve, Northwood, for appellant.

William Pappas, Mason City, for appellee.

BECKER, Justice.

Jerry Gerk, a minor, age 18, commenced action by his mother as next friend against his father for support in such amount as appears reasonable to the court under the circumstances. The trial court ordered defendant to pay plaintiff $60 per month during his minority and while pursuing an education beyond the high school level.

Jerry's parents, defendant Joseph Gerk and Lois Gerk, were married June 12, 1937. They have had domestic difficulty at least since June, 1961 when the mother left defendant and the farm home in Worth County with her two boys. Tim then 17 years old and Jerry then 14 left with her. Tim now lives apart from both parents and is self supporting. Mrs. Gerk and Jerry moved to Mason City, Iowa.

The domestic discord has been unfortunate, the domestic litigation has been futile. In 1961 Mrs. Gerk sued for divorce but dismissed that action. She brought suit for separate maintenance but that action was dismissed by the court in May, 1963. Apparently a partition action and a suit for support money for the wife have also been filed in addition to this action by Mrs. Gerk. Mr. Gerk instituted insanity proceedings against Mrs. Gerk in the summer of 1964, but he too was unsuccessful. The insanity board dismissed the complaint.

In July, 1964, Mrs. Gerk and Jerry moved back to the farm with the father. However, there is no evidence that either parent made any real effort to get along or to effectuate a meaningful reconciliation. Mrs. Gerk kept her job in Mason City. It was at this time that Mr. Gerk filed the insanity charge. The situation did not improve. Three weeks after moving in Mrs. Gerk and Jerry moved out again and have not returned. The record is replete with charge and counter charge of wrongful actions and attitudes during the period that this reunited family unit remained under the same roof. Continued recitation of factual evidence of marital discord is unnecessary in this opinion.

The financial position of the parties is relevant. At the time Mrs. Gerk left her husband in June of 1961, she took $8000 with her. She states she used this money to live on during the first three years of the separation. Her return to the farm for three weeks seems to coincide with the depletion of this fund. For a period of five weeks starting in March of 1964, as part of the unsuccessful separate maintenance action, defendnat provided $50 per week support on condition that Mrs. Gerk take psychiatric treatments. He stopped such payments when the psychiatrist told him that he, the psychiatrist, couldn't help Mrs. Gerk. These funds constitute the sole support provided by the defendant from June of 1961 to date.

Initially, Mrs. Gerk earned $80 a month at a hospital. Subsequently, she took special training at Mason City Junior College under a government sponsored clerk-typist course and at that time received $40 a week living expenses as part of the program. Her present take home pay is $42.89 per week as a clerk typist. She and Jerry live in Mason City.

Jerry worked part time while in high school. He had a B average up to the time he started working. With the outside work his grades went to a C average. He graduated from high school in June, 1965. Upon graduation Jerry enrolled at Technician School at Mercy Hospital to become a surgical technician. He is paid $5 a day for this training on a five day a week basis. His scholastic marks are now straight A's. He hopes to save enough money to go to junior college for further education and thence to medical school. He has saved $940. He states that he gives his mother some money to help with the groceries.

Defendant father of plaintiff has been engaged in farming since 1948. He owns 395 acres of farm land the value of which he puts in excess of $200 per acre (plaintiff testifies that 'they tell me it is worth between $300 to $400 an acre'). The trial court observed that there was some evidence that the farm is worth $300 per acre, and found with justification that defendant's money, bonds and other personal property were worth at least $50,000. He testified that his income is between $8,000 and $10,000 per year.

It is apparent from the record that the parents of Jerry Gerk cannot (or will not) get along as a married couple should. There is no evidence that this minor son has caused, or substantially contributed to, whatever cause underlies this discord.

Defendant's counsel in his brief states: 'Perhaps the only reason for the plaintiff and his mother leaving the defendant's home is due to the mental difficulties of the plaintiff and his mother.' We cannot agree that the evidence justified such a conclusion, particularly as to the young man.

Defendant relies on the following propositions: 1. There is no responsibility upon a parent to support a minor child who is living outside of the father's home. 2. A father is under no responsibility for the support of a child where the mother leaves the father without cause, taking the children with her. 3. Plaintiff in this action is an emancipated child.

I. This court has ruled on the first two of the above propositions in cases involving divorced parents. Our rulings have been contra to defendant's position. Addy v. Addy, 240 Iowa 255, 36 N.W.2d 352 considered the father's duty to support his child where his former wife obtained a divorce in the State of Washington. She returned to Iowa and filed suit, for the use and benefit of their minor son, for his support. We said:

'There can be no question that upon birth of the child defendant became morally and legally obligated, aside from any statute, to support it during minority. He was not relieved of this obligation by the decree of divorce with its award of custody to the mother. While the decree severed the marital relation between husband and wife it did not divorce defendant from his obligation to provide for the wants of the child. (citing cases)

'* * * A father's obligation to support his child is not abrogated by the fact the separation of the parents may have been caused by fault of the wife. Even where a divorce is granted to the father it is usually held he remains liable for support of children whose custody was awarded the mother. The child should not be denied his right to the support of his father because of dissension between the parents for which he was not to blame.' (Citing cases.) (Emphasis supplied.)

II. Defendant contends that since Addy v. Addy the legislature promulgated the Uniform Support of Dependents Law, Chapter 252, Code, 1962, and that the right of the child to support must necessarily be controlled by that statute. This overlooks section 252A.8

'Additional remedies. This chapter shall be construed to furnish an additinal or alternative civil remedy and shall in no way affect or impair any other remedy, civil or criminal, provided in any other statute and available to the petitioner in relation to the same subject matter.'

It would appear that the right of the minor child to sue for support by next friend established in Addy v. Addy, supra, is not impaired by the passage of chapter 252A. For further discussion of the purpose and effect of that chapter see Keefe v. Keefe, Iowa, 143 N.W.2d 335, decided June 14, 1966.

III. In Bouska v. Bouska, 249 Iowa 281, 86 N.W.2d 884, we observed:

'In Iowa, parents are equally liable for the support of their minor children. But they may contract between themselves as to liability for such support, and equally the court may order either to furnish it and to hold the other free from liability therefor. It is true a parent may not be entirely relieved from such liability; the public policy of the state forbids. But as between themselves one may be held liable and the other relieved, and such an agreement or decree will be binding, at least to the extent of the resources of the parent so obligated. Pappas v. Pappas, 247 Iowa 638, 75 N.W.2d 264, 266. See also the cases therein cited, especially Cushman v. Hassler, 82 Iowa 295, 297, 47 N.W. 1036, 1037.' (Emphasis supplied.)

Defendant argues that the facts here show an implied agreement between the parents that the mother will furnish Jerry's support. We see no evidence of such agreement. The fact that the mother refuses to live with the father, wrongfully or otherwise, furnishes no basis for such implication. If it did the implication could not bind the minor. 'A father cannot be relieved from the duty to support his minor children by agreement of the mother.' Addy v. Addy, supra, and cases cited.

Schade v. Schade, 274 Mis. 519, 80 N.W.2d 416, is an action for support of minor children under the Wisconsin support statutes. Following the wife-mother's unsuccessful action for divorce, the mother took the minor children with her and filed action for support under the applicable Wisconsin statutes. The Wisconsin Supreme Court's findings are in point:

'Thus, notwithstanding that minor children are improperly detained from the father by the mother, the offer by the father to support them only if they are...