Hall v. Green

• Decision Date: 09 January 1895
• Citation: 32 A. 796,87 Me. 122
• Parties: HALL v. GREEN.
• Court: Maine Supreme Court

32 A. 796

87 Me. 122

HALL

v. GREEN.

Supreme Judicial Court of Maine.

Jan. 9, 1895.

(Official.)

Report from supreme judicial court, Lincoln county. An action of assumpsit by Elias C. Hall against Henry S. Green for the support of a minor child of the defendant, after he had been divorced on the libel of the mother, who afterwards married the plaintiff. Judgment for defendant.

True P. Pierce and Howard E. Hall, for plaintiff.

J. B. Peaks, for defendant.

PETERS, C. J. The plaintiff is the husband of a former wife of the defendant, and has been supporting in his family a daughter of his wife by her former husband (the defendant), the wife having obtained a divorce from the latter for his fault. By the decree of divorce the custody of such minor child was committed to the mother. The plaintiff now claims to recover in this action for the child's support, for a period from 1884 to 1893, the sum of nearly $1,300. No express agreement is pretended, and only such an Implied agreement as can legally result from the relations of the parties.

We are of the opinion that the action cannot be maintained. We think that when a divorce is granted to a wife, and as a consequence of it she has committed to her the care and custody of her minor child, it follows that the father becomes entirely absolved from the common-law obligation which previously rested upon him to support such child, and that the only obligation of the kind afterwards resting upon him consists in such terms and conditions in respect to alimony and allowances as the court may impose on him in the decree of divorce, or in some subsequent decree in the same proceeding.

Mr. Bishop in his treatise on Marriage and Divorce, which contains a discussion of this question and of the authorities touching it, expresses our views in the following statement: "It seems to be a principle of the unwritten law that the right to the services of the children and the obligation to maintain them go together; the consequence of which would be that, if the assignment of the custody to the mother goes to the extent of depriving the father of his title to the services of the children, he cannot be compelled to maintain them otherwise than in pursuance of some statutory regulation. When the court granting the divorce and assigning the custody to the wife makes, under the authority of the statute, provision for their support out of the husband's estate, he would seem, upon principles already mentioned, to be relieved from all further obligation." 2 Bish. Mar. & Div. (6th Ed.) § 557.

And we have no doubt that the same exoneration from common-law liabilities and remedies follows when the court awards the custody of the child to the mother, but is silent in its decree on the question of allowances for the support of the children or for herself.

The implication of the decree in such case is that the wife voluntarily assumed the burden of supporting the children, or that there was some other special reason for the omission. It is well known that the record does not tell the whole story of many divorce cases. It is a common thing for parties to arrange matters of alimony and allowances...