Goulart's Estate, In re

• Decision Date: 15 July 1963
• Citation: 32 Cal.Rptr. 229,218 Cal.App.2d 260
• Parties: , 6 A.L.R.3d 1380 . John Dan GOULART and Judith Marie Goulart, by their guardian ad litem, Ethel Ann Goulart, Petitioners and Respondents, v. Edith GOULART, Executrix of the Estate of John Bettencourt Goulart, Deceased, Objector and Appellant. Civ. 21037. District Court of Appeal, First District, Division 1, California
• Court: California Court of Appeals Court of Appeals

Page 229

32 Cal.Rptr. 229

218 Cal.App.2d 260, 6 A.L.R.3d 1380

In re ESTATE of John Bettencourt GOULART, Deceased.

John Dan GOULART and Judith Marie Goulart, by their guardian ad litem, Ethel Ann Goulart, Petitioners and Respondents, v. Edith GOULART, Executrix of the Estate of John Bettencourt Goulart, Deceased, Objector and Appellant.

Civ. 21037.

District Court of Appeal, First District, Division 1, California.

July 15, 1963.

Blair F. Burton, El Cerrito, for appellant.

Hugh Henes, Oakland, for respondents.

BRAY, Presiding Justice.

Appellant, the widow of decedent and executrix of his estate, appeals from an order granting family allowance to his two minor children by a prior marriage, and purports to appeal from the order denying rehearing. ¹

QUESTION PRESENTED.

Where a divorce decree provides for child support payments, is a creditor's claim in the father's estate the exclusive method of obtaining support for said children?

FACTS.

Ethel Ann Goulart, who as guardian ad litem of the two minor children of said decedent, filed this proceeding, is the divorced wife of decedent. By final decree of divorce, dated October 22, 1953, as modified February 18, 1954, she was awarded custody of the three (at that time) minor children of the parties and decedent was ordered to pay $20 per week support for each child, to continue until the further order of the court. John Goulart died August 26, 1961. March 13, 1962, she, as guardian ad litem of the two minor children, petitioned the probate court for family allowance for them. She asked for $150 per month for the minor son and $90 per month for the minor daughter. Edith Goulart, widow of decedent and executrix of his estate, opposed the petition by an affidavit setting forth in effect that there were insufficient funds in the estate to pay expenses of administration, funeral expenses and claims and a family allowance to the children. The probate court granted the petition, ordering the executrix to pay to the guardian sum of $20 per week for each child, to 'continue during the respective minority of each of said minors or until otherwise ordered by the court.'

FAMILY ALLOWANCE PROPER.

Appellant contends that the family allowance was improperly awarded because support obligation under the divorce decree was a claim required to be filed against the estate, and that no family allowance could be granted because there was no duty to support other than that. This contention overlooks the fact that a father's duty to support his minor children 'exists independently of the marriage status, and is a continuing obligation 'during the minority of any of the children of the marriage.' C.C. [Proc.] Sec. 138. It is unaffected by either the interlocutory or final decree and may be enforced by a proper proceeding.' (Bernard v. Bernard (1947) 79 Cal.App.2d 353, 358, 179 P.2d 625, 628.) That the children are in the custody of the mother under court order does not relieve the father of the support obligation, even though section 196, Civil Code, provides, in part, that the parent entitled to the custody of a child must give him support and education suitable to his circumstances. (Dickens v. Dickens (1947) 82 Cal.App.2d 717, 720, 187 P.2d 91.)

'In California the rule is that the obligation of a father to support his minor child which is fixed by divorce decree * * * does not cease upon the father's death, but survives as a charge against his estate.' (Taylor v. George (1949) 34 Cal.2d 552, 556, 212 P.2d 505, 507.) There is nothing in Taylor or in Newman v. Burwell (1932) 216 Cal. 608, 15 P.2d 511 (cited by appellant) nor in any other authority that we have been able to find, that holds that filing a claim against the estate and suing thereon if the claim is rejected, is the exclusive method of obtaining support for minor children in the custody of a mother who has obtained support order for them in the divorce decree. In Newman, supra, 216 Cal. page 615, 15 P.2d page 514, the court in holding that an action based upon a decree of divorce awarding custody of a minor child to the plaintiff and ordering the payment to her of support for the child was proper against the deceased father's estate, stated that in such action 'There should be credited as payments on said claims [that is, claims for unpaid support under the decree of divorce] all sums paid to the plaintiff in the administration of the estate as family allowance for the support and maintenance of the minor child.' (P. 615, 15 P.2d p. 514.) This appears to be the only statement in California relating to the issue in the instant case. Insofar as anything may be inferred from it, it appears to indicate that the granting of a family allowance is proper if credit for it be given on the decree support payments.

In Cline v. Cline (1918), 183 Iowa 1255, 166 N.W. 698, the court held that where a divorce decree ordered child support payments it was not error to deny a petition for family allowance for the child from the father's estate. There is no discussion of the subject as the court said that it was expressing no opinion whether 'under any circumstances' the divorced wife might obtain support for the child from the estate of the divorced father. 'It is enough at this time to say that, if under some conditions such right may exist, we think that the trial court did not err in holding that the allowance already granted in * * * the divorce decree for the support of the child satisfies the requirement of the law, and that the application for additional relief in that line was properly overruled.' (166 N.W. p. 700.) This decision is not persuasive.

To say that the minor child's sole remedy in collecting support money is through the creditor's claim procedure would appear to be relegating him to an undeserved position. At least during the period the estate is being administered there should be a means to provide for his support. The estate may not be of sufficient size to be able to fulfill the payments under the support decree, if the child's support is limited to a claim therefor against the estate, such claim to rank with other claims as provided in section 950, Probate Code. The child of a former marriage should stand in no worse position than the widow of the decedent's last marriage, regardless of the support decree. Family allowances "* * * are strongly favored in the law * * * [statutes providing therefor] must be construed with the same spirit of liberality that prompted their enactment * * * to guard and protect the family * * *'.' (Estate of Filtzer (1949) 33 Cal.2d 776, 783, 205 P.2d 377, 381.)

The order is attacked also on the ground that it is not supported by the evidence. There is no transcript in the record of the proceedings before the court. All that appears in the record is the verified petition of Ethel Goulart stating that the sums requested 'are necessary...