Hooten v. Hooten
| Docket Number | 6621. |
| Decision Date | 15 February 1929 |
| Citation | 147 S.E. 373,168 Ga. 86 |
| Parties | HOOTEN et al. v. HOOTEN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The petition did not set forth a cause of action, and the court did not err in sustaining the demurrer and dismissing the case.
Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.
Petition by Leila May Hooten and another, by their mother as next friend, against W. C. Hooten. Judgment for defendant, and plaintiffs bring error. Affirmed.
John M Morrow and H. W. McLarty, both of Atlanta, for plaintiffs in error.
B. L Milling, of Atlanta, for defendant in error.
Leila May Hooten and Mildred Lee Hooten, by their mother as next friend, filed their petition against William C. Hooten, in which they make the following allegations:
Essie M. and William C. Hooten married and lived together as man and wife for a number of years. Leila May Hooten, age 13, and Mildred Lee Hooten, age 10, are the issue of this marriage. The parents were totally divorced at a time when the children were "mere babies." They have arrived at an age where it is expensive to maintain and keep them in school. Their father has not contributed anything towards their support since December, 1927, when he stated that he was not going to pay them anything more. Up to that time the mother maintained a home for the children; but, since the father has ceased contributing to their support, she has had to break up her home and do the best she could in supporting and educating her children. She has been forced to send both of them to the state of Alabama, where her sister lives, in order to board them with her and let them go to school. She is boarding them there on the strength of her credit. She could not make such arrangements in this state. She is entitled to at least $100 per month for the support and maintenance of these two children, and she asks for this amount out of the earnings of the father. He is now earning not less than $200 per month, and has a good steady job. Petitioners pray that they be allowed judgment for such an amount as the court may think meet and proper for their temporary support, that the amount of $100 per month be awarded to them as permanent support, and that the father be required to pay a reasonable attorney's fee.
The father demurred upon the grounds: (a) The petition is not authorized by law. (b) There is no provision of law or equity authorizing or sanctioning it. (c) It sets forth no cause of action. (d) Children cannot sue their father for support by themselves or their next friend, where there is a total divorce between the father and mother. (e) It appears from the petition that the divorced wife of the defendant is suing for a sum named, for herself for the support of the children which she has no right to do. The court sustained the demurrer and dismissed the petition. The children excepted.
1. We must first determine the law fixing the extent of the father's duty to support and educate his minor children. "Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child." Civil Code 1910, § 3020. So generally it is the duty of the father, having the ability to do so, to support his minor children. Some decisions hold that the duty of the parent to support and educate his minor children is merely a moral obligation, which is not enforceable in law independent of statute. 46 C.J. 1257, § 34, and notes 94, 95. The better view, as to the duty of the parent to support his minor children, undoubtedly is that this obligation of the parent is a legal one, as well as a moral one. Id., and cases cited in note 97; Hines v. Mullins, 25 Ga. 696. This is so because it is his duty, under the above section of the Code, to furnish such support if he is able.
To this general rule there are exceptions. One of these grows out of the principle that the duty to support and the right to the custody and the earnings of his minor children are reciprocal (Civil Code 1910, §§ 3020, 3021; 46 C.J. 1256, § 34), and that whatever deprives the parent of the right to the custody and services of the child, without fault on his part, relieves him from the duty to support the child ( Thompson v. Georgia Ry. & Power Co., 163 Ga. 598, 603, 136 S.E. 895). Another exception arises where the parents have been divorced, and provision for the support of the children has been provided in the divorce proceeding. "In suits for divorce, the judge presiding may, either in term or vacation, grant alimony, or decree a sum sufficient for the support of the family of the husband dependent upon him, and who have a legal claim upon his support, as well as for the support of his wife; *** and in case a sum is awarded for the support of said family, the husband shall not be liable to third persons for necessaries furnished them." Civil Code 1910, § 2980. If the jury trying a divorce case on the final verdict find in favor of the wife, they shall also, in providing permanent alimony for her, specify what amount the minor children shall be entitled to for their permanent support, and in what manner, how often, to whom, and until when it shall be paid; and this they may do if, from any legal cause, the wife may not be entitled to permanent alimony; and when such support shall thus be granted, the husband shall not be liable to third persons for necessaries furnished the children embraced in the verdict. Section 2981.
The petition discloses that the husband and wife had been divorced and that the wife has ever since had the custody of the children, who were "mere babies" when the divorce was granted. The petition is silent as to the grant of alimony to the wife for her support and that of the children. In these circumstances, construing the petition most strongly against the pleader, it is a fair presumption that the judge and jury, in granting to the wife a total divorce, made some provision for the support of the minor children. It would certainly be incumbent upon the children, who, after the grant of the divorce, bring an action by their mother as next friend against their father for an allowance for their support, to allege facts which take their case out of the above exceptions, and in the absence of such allegations the petition does not make a case which would entitle the children to a judgment compelling the father to make an allowance for their support.
There are other exceptions to the general rule imposing upon the father the duty of supporting his minor children; but it is unnecessary in this case to refer to these other exceptions.
Under section 3020 it is also the duty of the father to educate his minor children. One object of the present suit is to compel the father to provide an allowance for the payment of the children's board with a sister of their mother in the state of Alabama, in order that they may attend school in that state. In Board of Education v. Purse, 101 Ga. 422, 429, 28 S.E. 896, 899 (41 L.R.A. 593, 65 Am.St.Rep. 312), Mr. Justice Cobb, who delivered the opinion of the court, said: He then declared that the common law, which imposed upon the father the duty of educating his children, became part of the law of this state, and he cited Civil Code 1895, § 2501 (1910), § 3020. He then said: "The section cited declares that the father shall provide for the maintenance, protection, and education of his child, but relatively to the matter of education no provision is made for the punishment of a parent who fails to discharge this duty, or for the relief of the child who is a victim of such failure." In support of this proposition he cited Rulison v. Post, 79 Ill. 567.
The Constitution of this State provides for "a thorough system of common schools for the education of children, *** as nearly uniform as practicable, the expenses of which shall be provided for by taxation, or otherwise." These "schools shall be free to all children of the state." Civil Code 1910, § 6576; Ga. L. 1911, p. 46; 5 Park's Code, § 6576. Every parent, guardian, or other person having charge and control of a child between the ages of 8 and 14 years, who is not exempted or excused, shall cause the said child to be enrolled in and to attend continuously for six months of each year, the public school for the district or city or town in which such child resides. Ga. L. 1919, pp. 288, 358; 8 Park's Code Supp. 1922, § 1444 (a). It is a penal offense for any parent, guardian, or other person, who has charge and control of a child between the above years, to willfully fail to comply with the requirements laid down in the above section of the Civil Code, as to compulsory school attendance. Ga. L. 1919, pp 288, 359; 11 Park's Penal Code Supp. 1922, § 702(r). It will thus be seen, by the Constitution of this state and the laws passed in pursuance thereof, that the state has undertaken to furnish free education to all children within its borders between the ages of 8 and 14 years. Petitioners are within these ages, and are entitled to an education in the public schools of the state without charge. Their parents live in this state. In these circumstances, we are of the opinion that their father should not be charged with expenses of their education in another state. It follows that, so far as the petition seeks to compel the father to make a provision for...
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