Gilley v. Gilley

• Decision Date: 10 March 1887
• Parties: GILLEY v. GILLEY and another.
• Court: Maine Supreme Court

9 A. 623

79 Me. 292

GILLEY

v. GILLEY and another.¹

Supreme Judicial Court of Maine.

March 10, 1887.

On exceptions by subsequent attaching creditor from superior court, Kennebec county.

Action of assumpsit brought by the plaintiff (mother) to recover of the defendant (father) for the necessary support of their minor children, furnished by the mother after a divorce a vinculo decreed to her for "desertion and want of support;" no decree having been made either for alimony or custody of the children. There was no appearance for the defendant, but the action was contested by a subsequent attaching creditor of the funds in the hands of the trustee. A decision was rendered in favor of the plaintiff, and the attaching creditor alleged exceptions.

Baker, Baker & Cornish, for plaintiff.

S. & L. Titcomb, for subsequent attaching creditor.

VIRGIN, J. Assumpsit by the mother against the father, for their young children's necessary support, furnished after a divorce a vinculo, decreed to her for his "desertion and failure to support," he having been absent from the state several years prior to the decree, and never having returned or furnished any support whatever during the time, and no decree for alimony or custody of the children having been made. It is a matter of common knowledge that a father is entitled by law to the services and earnings of his minor children. It is equally well known that this right is founded upon the obligation which the law imposes upon him to nurture, support, and educate them during infancy and early youth, and continues until their maturity, when the law determines that they are capable of providing for themselves. Benson v. Remington, 2 Mass. 113; Dawes v. Howard, 4 Mass. 98; Nightingale v. Withington, 15 Mass. 274; State v. Smith, 6 Me. 462, 464; Dennis v. Clark, 2 Cush. 352, 353; Reynolds v. Sweetser, 15 Gray, 80; Garland v. Dover, 19 Me. 441; Van Valkinburgh v. Watson, 13 Johns. 480; Furman v. VanSise, 56 N. Y. 435, 439, 445, 446; 2 Kent, Comm. *190 et seq; Schouler, Dom. Rel. 321.

In Dennis v. Clark, supra, the court said: "By the common law of Massachusetts, and without reference to any statute, a father, if of sufficient ability, is as much bound to support and provide for his infant children, in sickness and in health, as a husband is bound, by the same law and by the common law of England, to support and provide for his wife. And if a husband desert his wife, or wrongfully expel her from his house, and make no provision for her support, one who furnishes her with necessary supplies may compel the husband, by an action at law, to pay for such supplies. And our law is the same, we have no doubt, in the case of a father who deserts or wrongfully discards his infant children." This, upon the ground of agency. Reynolds v. Sweetser, supra; Hall v. Weir, 1 Allen, 261; Camerlin v. Palmer Co., 10 Allen, 539. But a minor, who voluntarily abandons his father's house, without any fault of the latter, carries with him no credit on his father's account even for necessaries. Weeks v. Merrow, 40 Me. 151; Angel v. McLellan, 16 Mass. 27. Otherwise a child, impatient of parental control while in his minority, would be encouraged to resist the reasonable control of his father, and afford the latter little means to secure his own legal rights beyond the exercise of physical restraint. White v. Henry, 24 Me. 533. Moreover, in actions for seduction, whereof loss of service is the technical foundation, the loss need not be proved, but will be presumed in favor of the father who has not parted with his right to reclaim his minor daughter's service, although she is temporarily employed elsewhere. Emery v. Gowen, 4 Me. 33. "And this rule results from the legal obligation imposed upon him to provide for her support and education which gives him the right to the profits of her labor." Blanchard v. Ilsley, 120 Mass. 489; Kennedy v. Shea, 110 Mass. 147; Emery v. Qowen, supra; Furman v. Van Sise, 56 N. Y. 435, 444. So, also, in that large class of cases wherein needed supplies furnished by the town to minor children, between whom and their father, though they lived apart, the parental and filial relations still subsisted, are considered in law supplies indirectly furnished the father. The reason is because he was bound in law to support them. Garland v. Dover, 19 Me. 441.

We are aware that courts of the highest respectability, especially those of New Hampshire and Vermont, hold that a parent is under no legal obligation, independent of statutory provision, to maintain his minor child, and that, in the absence of any contract on the part of the father, he cannot be held except under the pauper law of those states which are substantially like our own. Kelley v. Davis, 49 N. H. 187; Gordon v. Potter, 17 Vt. 348. But, as before seen, the law was settled otherwise in this state before the separation, and has been frequently recognized in both states since; and we deem it the more consistent and humane doctrine. It is also settled that, at least during the life of the father, the mother, in the absence of any statutory provision or decree relating thereto, not being entitled to the services of their minor children, is not bound by law to support them. Whipple v. Dow, 2 Mass. 415; Dawes v. Howard, 4 Mass. 97; 2 Kent, Comm. *192; Weeks v. Merrow, 40 Me. 151; Gray v. Durland, 50 Barb. 100; Furman v. Van Sise, supra, (both opinions;) Rev. St. c. 59, § 24.

This leads to an inquiry into the effect of the divorce a vinculo alone, unaccompanied by any decree committing the custody of the children to the mother; for, when such a decree is made, then the father would have no right, either to take them into his...