Gully v. Gully

• Decision Date: 28 January 1916
• Docket Number: (No. 1525.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 184 S.W. 555
• Parties: GULLY v. GULLY.
• Court: Texas Court of Appeals

184 S.W. 555

GULLY v. GULLY.

(No. 1525.)^*

Court of Civil Appeals of Texas. Texarkana.

January 28, 1916.

On Petition for Rehearing, February 17, 1916.

Appeal from District Court, Panola County; W. C. Buford, Judge.

Action by Mrs. M. E. Gully against T. R. Gully. From a judgment for plaintiff, defendant appeals. Reformed and affirmed.

H. N. Nelson, of Carthage, for appellant. Young & Young, of Marshall, for appellee.

HODGES, J.

This is a suit by Mrs. M. E. Gully, the appellee, against her former husband, to recover the value of necessaries supplied by her to the children of the marriage after a divorce had been granted.

The material facts as disclosed by the record are undisputed, and are substantially as follows: The appellant and the appellee had formerly been husband and wife. In October, 1912, a divorce was granted at the instance of the wife, who was also awarded the custody of seven minor children ranging in age from 2 to 18 years. The parties were possessed of considerable property, most of which belonged to the community. The decree of divorce provided for a partition of all the community property except a tract of 6.27 acres of land upon which the family resided, and the household and kitchen furniture. This was set apart to the wife for the use of herself and the minor children. The divorce decree also provided that the children should be supported jointly by the father and mother, and fixed the amount that each should contribute for that purpose at $50 per month. Upon the refusal of the appellant to make those payments the appellee filed a motion in the court which granted the divorce, asking for an order to sell certain portions of the community property which had been set aside to the husband, in order to satisfy the monthly installments which had matured up to that time. A judgment was rendered in her favor, but on appeal to this court was reversed upon the ground that the trial court in granting the divorce exceeded his powers in attempting to fix a personal liability in that manner against the divorced husband for the support of the children. See Gully v. Gully, 173 S. W. 1178. In March, 1915, Mrs. Gully filed this suit, alleging, among other material facts, that she had supported and maintained the seven children since the granting of the divorce and had furnished them with such necessaries as their condition in life demanded, amounting in the aggregate to $4,100, and asked for a judgment reimbursing her for those expenditures. The case was tried before the court without a jury, and a judgment rendered in her favor for $2,957.70.

The principal ground here relied on for a reversal is that the facts were insufficient to support the judgment. The case made by both the pleadings and the evidence is not one where the father's credit has been pledged by the divorced wife or child for necessaries supplied to the child by some third party who owed it no duty, but is one where the divorced wife, possessed of ample means, after having supplied the children's wants, seeks reimbursement from her former husband upon the sole ground that the duty of supporting their children rests primarily upon him. We have not been referred to, nor have we been able to find, any cases in this state where this precise question has been decided. While the ruling made by this court on the former appeal is supported by other decisions in this state (see Gully v. Gully, supra, and cases there cited), that ruling furnishes no precedent for sustaining the judgment here appealed from. In other jurisdictions where similar controversies have arisen there is much diversity of opinion and considerable conflict in the conclusions announced. The greater number of those cases support the ruling of the trial court, holding that the divorced husband is liable to the wife under facts substantially the same as those disclosed in this case. Pretzinger v. Pretzinger, 45 Ohio, 452, 15 N. E. 471, 4 Am. St. Rep. 542; Fulton v. Fulton, 52 Ohio St. 229, 39 N. E. 729, 29 L. R. A. 678, 49 Am. St. Rep. 720; Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628, Ann. Cas. 1915D, 809; Evans v. Evans, 125 Tenn. 112, 140 S. W. 745, Ann. Cas. 1913C, 294; Brown v. Brown, 132 Ga. 712, 64 S. E. 1092, 31 Am. St. Rep. 229. There are other cases, however, which hold to the contrary. Brow v. Brightman, 136 Mass. 187; Hall v. Green, 87 Me. 122, 32 Atl. 796, 47 Am. St. Rep. 311; Glynn v. Glynn, 94 Me. 465, 48 Atl. 105; Husband v. Husband, 67 Ind. 583, 33 Am. Rep. 107; Ramsey v. Ramsey, 121 Ind. 215, 23 N. E. 69, 6 L. R. A. 682; Hector v. Hector, 51 Wash. 434, 99 Pac. 13; Spade v. State, 44 Ind. App. 529, 89 N. E. 604. See the following for collation of cases: Spencer v. Spencer, 97 Minn. 56, 105 N. W. 483, 114 Am. St. Rep. 695, 7 Ann. Cas. 901; Graham v. Graham, 38 Colo. 453, 88 Pac. 852, 8 L. R. A. (N. S.) 1270, 12 Ann. Cas. 137; Evans v. Evans, 125 Tenn. 112, 140 S. W. 745, Ann. Cas. 1913C, 294. How much of this diversity of opinion is due to local statutory enactments we are unable to say. Doubtless in most, if not all, of the states where these controversies have arisen the Legislatures have made some special provisions which varied the common-law doctrine regarding the property rights of the husband and wife and their respective duties toward their children after divorce. It is apparent from the arguments used by some of those courts which permit the divorced wife to recover reimbursement for necessaries furnished by her that the ruling is predicated upon the assumption that relative status of the father and mother toward their children after separation is much the same as it was before; that the father still holds the superior right to their custody and control, and that the authority of the mother remains subordinate till the court granting the divorce provides otherwise. They treat the mother as occupying toward her children a relation similar to that of an interested collateral relative, whose rights are only secondary. Hence it was not illogical, in such instances, to hold that the father's financial duties and obligations remained the same. In the Pretzinger Case, referred to above, the wife separated from her husband on account of his misconduct, which furnished grounds, not only for the decree of divorce, but for awarding her the custody and control of the minor child. She was afterwards permitted to recover from the husband reimbursement for necessaries which she had furnished the child while in her care. In Fulton v. Fulton, supra, the same court, at a later date, in a similar controversy, denied the wife the right of recovery because in that instance the divorce had been granted on account of her misconduct, although she had been awarded the custody of the child. In undertaking to harmonize these rulings the court, in the Fulton Case, said:

"Where separation and divorce result from the misconduct of the husband, Pretzinger v. Pretzinger, 45 Ohio St. 452 4 Am. St. Rep. 542, asserts the primary liability of the father, in a contest between him and the mother, and in such case, the right of the mother to recover against the father for such reasonable necessaries as she has furnished, is established. That case is grounded in the principle that, as the primary liability rests upon the father, he cannot, by his own misconduct, shift it to the mother. Dickman, J., saying in reference to the natural duty resting on parents to support their children, that: `This natural duty is not to be evaded by the husband's so conducting himself as to render it necessary to dissolve the bonds of matrimony. * * * It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents, * * * or to enable the father to convert his own misconduct into a shield against parental liability.' * * * Again: `There is evidently no satisfactory reason for changing the rule of liability, when, through ill treatment, or other breach of marital obligation, the husband renders it necessary for a court of justice to divorce the wife, and commit to her the custody of her minor children.' Pretzinger v. Pretzinger, 45 Ohio St. 458 4 Am. St. Rep. 542. In the case before the court, however, the wife was the aggressor, and it is this feature by which it is to be distinguished from Pretzinger v. Pretzinger, 45 Ohio St. 458 4 Am. St. Rep. 542, for in that case the husband was in fault. It does not necessarily follow that because a father cannot, by his own misconduct, shift from himself to the mother his primary liability to support his minor children, that the mother cannot, by her misconduct, produce that result, at least to the extent of denying to her a right to recover against him for expenses she has incurred for necessaries for their support, in the absence of a request or promise by him in the premises. The contest is between the parents. By the law of nature, the responsibility of each for the birth of children is equal; the moral obligation of nurture, protection, and reasonable support bears upon each according to his or her capacity to afford it. Schouler, in referring to this obligation, says: `This is said to rest upon a principle of common law; but perhaps it may be more reasonably referred to the implied obligation which parents assume in entering into wedlock and bringing children into the world.' Schouler's Domestic Relations."

According to these decisions, the rule to be observed in any given case is determined by who was responsible for the separation. If this resulted from the misconduct of the husband, his primary common-law liability for the support of the child continues; but if the wife was the guilty party and secures the custody of the child, she becomes primarily responsible for its support, and has no claim for assistance from the husband. It is not intimated that the legal status of the husband and wife toward each other after divorce is in any manner affected by what may have caused the separation; this altered...