Grimes v. Grimes, 39994

Decision Date07 April 1956
Docket NumberNo. 39994,39994
Citation179 Kan. 340,295 P.2d 646
PartiesJames R. GRIMES, Appellee, v. Carol A. GRIMES, Appellant.
CourtKansas Supreme Court

Syllabus by the Court.

1. A father cannot relieve himself of his common law or statutory obligation to support his child by entering into an agreement with a third person to assume that responsibility.

2. The right of the child to support from its father is a chose in action which belongs to the child.

3. Under the provisions of G.S.1955 Supp. 60-1510, a trial court when granting a divorce is required to make not only an order concerning the custody of minor children, but provisions for their support (following Anderson v. Anderson, 167 Kan. 494, 207 P.2d 453).

4. There is no hard and fast rule in this jurisdiction for determining the amount of alimony a trial court shall award where a wife is granted a divorce by reason of the husband's fault, G.S.1949, 60-1511. However, it is error to allow nothing.

5. In an action for divorce, the record is examined and it is held, the trial court erred in refusing to make provision for child support and in failing to allow defendant alimony.

Laurance R. Mulliken, Columbus, for appellant.

Paul Armstrong, Columbus, S. Leo Armstrong, Columbus, on the brief, for appellee.

WERTZ, Justice.

This was an action for divorce. This appeal concerns only that portion of the decree relating to alimony and child support.

Appellee James R. Grimes will be hereinafter referred to as plaintiff, and appellant Carol A. Grimes as defendant.

The pertinent facts may be briefly stated: Plaintiff was twenty-six, and the defendant sixteen years of age. They were married August 11, 1954 at which time defendant was pregnant. Preceding the marriage and on July 31, plaintiff entered into a written contract with defendant's parents, by the terms of which plaintiff agreed to marry the defendant so that the child might be born in wedlock, and to pay the medical and hospital expenses in connection with the anticipated birth of the child. Defendant's parents were to continue to provide the necessities of life for their daughter after the marriage, and plaintiff would not be obligated to pay any additional sums thereafter. It was further agreed between plaintiff and the parents of defendant that when a divorce was subsequently granted, defendant was to have custody of the anticipated child, and defendant's parents agreed to assume full support and financial responsibility of the child, thereby relieving plaintiff of any legal obligation for the support of the child at any future time. The child was born November 30, and on January 12 following, plaintiff filed this action for a divorce on the ground of extreme cruelty and gross neglect of duty. Defendant filed her answer denying the charges and, by way of cross-petition, alleged the residence of the parties, the marriage, and the birth of the daughter; that plaintiff was guilty of extreme cruelty and gross neglect of duty; that no property had been accumulated by their joint efforts; that plaintiff was a young, strong, able-bodied man capable of earning $100 per week, and that defendant had no means of income of her own and was wholly dependent upon plaintiff for support of herself and minor child. She asked for a divorce, alimony, custody of the minor child, and child support. At the trial, plaintiff waived the introduction of evidence in support of his petition, and the trial proceeded upon the cross-petition of defendant.

Inasmuch as no question is raised relative to the validity of that part of the judgment granting a divorce to defendant, the evidence supporting that portion will be omitted. In brief, the record discloses that plaintiff was twenty-six years of age, regularly employed at a salary of $54 per week. Plaintiff was seventeen years of age at the time of the trial, owned no property, was unemployed and had no prospects of a job by reason of her age and not having completed high school, and she had no means of supporting herself or the child, with the exception of help from her father. On cross-examination of defendant's witnesses, the contract entered into between plaintiff and defendant's parents was identified and, over the objection of defendant, introduced in evidence.

At the conclusion of the trial, the court found plaintiff guilty of gross neglect of duty and granted a divorce to defendant, and that the written agreement entered into between plaintiff and the parents of defendant was neither approval nor disapproved, but was considered by the court in determining the question of alimony and child support. The court found that the child, Cynthia Jo Grimes, was born in wedlock, and the question of her paternity was not an issue in the case. The court ordered plaintiff to pay the medical and hospital bills incident to the birth of the child, and specifically denied any alimony to defendant and, further, that no order for child support should be made at the time of the granting of the decree.

Defendant filed her motion for a new trial, contending the court erred (1) in the admission into evidence the written agreement between plaintiff and defendant's parents; (2) in considering the agreement in determining the question of alimony and child support; (3) in refusing to grant child support, and (4) in refusing to grant defendant alimony. There is merit to defendant's contention that the court erred in admitting the written agreement into evidence, and in considering such agreement in determining the question of alimony and child support. The contract was between plaintiff and defendant's parents. Defendant did not sign it, nor was she a party to it, and neither she nor the child could be bound by it. Plaintiff could not relieve himself of his common law or statutory obligation to support his child by entering into an agreement with a third person to assume that responsibility. 39 Am.Jur. 652, § 42; 17 Am.Jur. 516, § 682; 27 C.J.S. Divorce, § 319g, p. 1207.

It is beyond the power of a father to deprive the court by private agreement of its right to make provisions for the support of the minor children, as the children's welfare requires. The support of children, like their custody, is a matter of social concern. It is an obligation the father owes to the state as well as to his children. He has no right to permit them to become a public charge. (Separation Agreements and Ante-Nuptial Contracts, Part Two [Rev.Ed.], Lindey, page 257, § 15.)

In Doughty v. Engler, 112 Kan. 583, 584, 211 P. 619, 30 A.L.R. 1065, we said:

'By the great weight of judicial opinion in this country parents are under a legal duty, regardless of any statute, to maintain their legitimate minor children (20 R.C.L. 622), the obligation...

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23 cases
  • Goetz v. Goetz, 40459
    • United States
    • Kansas Supreme Court
    • April 6, 1957
    ...provide for their support, Sharp v. Sharp, 154 Kan. 175, 117 P.2d 561; Anderson v. Anderson, 167 Kan. 494, 207 P.2d 453; Grimes v. Grimes, 179 Kan. 340, 295 P.2d 646; that such jurisdiction over the custody, control, support and education of such children is a continuing jurisdiction, White......
  • State ex rel. Hermesmann v. Seyer
    • United States
    • Kansas Supreme Court
    • March 5, 1993
    ...v. Guernsey, 227 Kan. 480, 486, 608 P.2d 896 (1980); Strecker v. Wilkinson, 220 Kan. 292, 298, 552 P.2d 979 (1976); Grimes v. Grimes, 179 Kan. 340, 343, 295 P.2d 646 (1956). This duty applies equally to parents of children born out of wedlock. Huss v. DeMott, 215 Kan. 450, 524 P.2d 743 (197......
  • State of Kan. ex rel. Sec. of Srs v. Bohrer, No. 95,935.
    • United States
    • Kansas Supreme Court
    • August 8, 2008
    ...have a common-law duty to support their minor children, regardless of any statute imposing such an obligation. See Grimes v. Grimes, 179 Kan. 340, 343, 295 P.2d 646 (1956) (holding that a parent may not contract away his or her common-law duty to support his or her minor child). The court i......
  • Wheeler v. Wheeler
    • United States
    • Kansas Supreme Court
    • May 7, 1966
    ...the support of minor children as their welfare may require. (17 Am.Jur.2d 516 § 682; 27B C.J.S. Divorce § 319(4), p. 606; Grimes v. Grimes, 179 Kan. 340, 295 P.2d 646; Myers v. Anderson, 145 Kan. 775, 67 P.2d Our construction of the act and the application thereof under Kansas laws resolves......
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