Green v. Green

• Decision Date: 20 May 1936
• Docket Number: 683.
• Citation: 185 S.E. 651,210 N.C. 147
• Parties: GREEN v. GREEN.
• Court: North Carolina Supreme Court

185 S.E. 651

210 N.C. 147

GREEN v. GREEN.

No. 683.

Supreme Court of North Carolina

May 20, 1936

Appeal from Superior Court, Guilford County; Rousseau, Judge.

Action by Johnsie Green, an infant, by her next friend, Dorothy S Green, against Charles R. Green. From a judgment of dismissal, plaintiff appeals.

Reversed.

This was an action instituted by Johnsie Green, an infant of six years, against Charles R. Green, her father, for support and maintenance, and also for counsel fees pendente lite. The action was begun in the municipal court of the city of High Point.

Plaintiff alleged that the defendant, her father, had abandoned her and failed and refused to support her; that she has no means of support and has been dependent upon charity; that the defendant is able to pay for her support; and that she is unable to pay counsel for bringing and prosecuting this action, and she asks that defendant be required to provide for her support, and to pay a reasonable amount for counsel fees.

Defendant answering, denied that he was the father of the plaintiff alleged that he was married to her mother, Dorothy S. Green in 1922, and that he obtained an absolute divorce from her in 1934, in the superior court of Forsyth county, and denied he was under any obligation to support the plaintiff, or to pay her counsel fees.

The judge of the municipal court held that as a matter of law he could not allow plaintiff counsel fees or support pending the trial, and further sustained the motion of the defendant to dismiss the action on the ground that the superior court of Forsyth county, in which the divorce action between Chas. R. Green and Dorothy S. Green was tried, had exclusive jurisdiction to determine the maintenance of the plaintiff, Johnsie Green.

Upon appeal to the superior court of Guilford county the ruling of the municipal court was sustained and the action dismissed. From judgment of the superior court, plaintiff appealed to this court.

Walser & Wright, of High Point, for appellant.

W.T. Wilson, of Winston-Salem, for appellee.

DEVIN Justice.

Plaintiff's appeal challenges the correctness of the ruling of the court below upon two points:

1. Can an infant maintain an action against her father for support?

2. And, if so, may she have an allowance for counsel fees?

The first question must be answered, "Yes," and the second, "No." 1. It is held in Lynn Sanders and J.D. Sanders, by their next friend, W.J. Pratt, v. R.M. Sanders, 167 N.C. 319, 83 S.E. 490, 491: "There can be no controversy that the father is under a legal, as well as a moral, duty to support his infant children (Walker v. Crowder, 37 N.C. 478, [487] ), and, if he has the ability to do so, whether they have property or not (Haglar v. McCombs, 66 N.C. [345] 351). There is a natural obligation to support even illegitimate children which the law not only recognizes, but enforces. Burton v. Belvin, 142 N.C. [151], 153, 55 S.E. 71; Kimborough v. Davis, 16 N.C. [71], 74."

The liability of the father primarily to support the children remains as well after as before divorce, and even when the custody of the children has been awarded to the mother. 14 Cyc. 812; 9 A. & E. (2d Ed.) 871.

It was held in Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135, that an unemancipated child could not sue the father for a tort (there the alleged negligent operation of an automobile). Recovery was denied in that case upon the sound principle of the necessity of preserving the peace and privacy of the home and maintaining harmony in the domestic relations and family life. The ground upon which the right of action for tort by a child against a parent has been generally denied has been that, the family being the social unit, such actions would tend to undermine the influence of the home and were inconsistent with the family relation while it existed. Wick v. Wick, 192 Wis. 260, 212 N.W. 787, 52 A.L.R. 1113.

But as pointed out in the well-considered case of Small v. Morrison, supra, a distinction is made where the family relation had already been dissolved or disturbed and its harmony rudely shattered by the action of the father, quoting from Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682, and Roller v. Roller, 37 Wash. 242, 79 P. 788, 68 L.R.A. 893, 107 Am.St.Rep. 805, 3 Ann.Cas. 1.

Here it is alleged that defendant had obtained a divorce from plaintiff's mother, had abandoned the plaintiff to the precarious support of charity, and denied her paternity....