Jacobs v. Jacobs

• Citation: 161 N.W. 525,136 Minn. 190
• Decision Date: 23 February 1917
• Docket Number: No. 20130[233].,20130[233].
• Parties: JACOBS v. JACOBS.
• Court: Supreme Court of Minnesota (US)

136 Minn. 190

161 N.W. 525

JACOBS

v.JACOBS.

No. 20130[233].

Supreme Court of Minnesota.

Feb. 23, 1917.

Appeal from District Court, St. Louis County; J. D. Ensign, Judge.

Action for divorce by Caroline C. Jacobs against Albert W. Jacobs. Judgment denying plaintiff a divorce, giving her custody of three children, and requiring defendant to pay her a monthly sum for their support, and defendant appeals. Affirmed.

Syllabus by the Court

In an action by a wife for a divorce in which she fails to establish facts authorizing either a divorce or decree of separation, but in which it appears that the parties are living apart, the court may award the custody of the children to her and require the husband to contribute toward their support.

Although the statute be copied from the statutes of another state, the construction given it in that state is not necessarily controlling, where the courts of that state feel constrained to treat it as merely a revision of a former statute of that state and to give it the restricted operation of such former statute, notwithstanding the fact that the restrictive provisions contained in the former statute have been eliminated, especially when giving effect to the fair import of the language used will make our law more complete and harmonious.

The duty of the father to provide for his children continues whether they remain in his custody or not, unless the court, in some proceeding in which that question was involved and determined, has made express provision for their support of such a nature as to relieve him from further liability. His liability for their support is not limited by the regulations governing the allowance of alimony to the wife. Jaques & Hudson and Robert Jaques, all of Duluth, for appellant.

John H. Norton, of Duluth, for respondent.

TAYLOR, C.

Plaintiff brought this action for an absolute divorce on the ground of cruel and inhuman treatment. The court made findings as to the residence, marriage and separate property of the parties, and also that there were three children, issue of the marriage, the eldest of whom was six years of age, and further found:

‘That plaintiff has failed to establish by the evidence adduced on the trial thereof the allegations of cruelty contained in her complaint.

‘That the circumstances are such that the plaintiff and defendant feel that they are unable to live together.’

The court rendered judgment, ‘that plaintiff is not entitled to a divorce,’ but giving her the custody of the three children, and requiring defendant to pay her the sum of $15 per month for their support. Defendant appealed from the judgment.

[1] The evidence is not returned, and the case is submitted upon the judgment roll. The question presented is whether, in an action by a wife for a divorce in which she fails to establish any ground for either a divorce or a decree of separation, but in which it appears that the parties are in fact living apart, the court may award the custody of the children to her and require the husband to contribute toward their support.

Sections 7111 to 7133, General Statutes of 1913, contain the statutory provisions authorizing and regulating actions for an absolute divorce; and sections 7134 to 7141 contain the statutory provisions authorizing and regulating actions for a separation from bed and board. Section 7122, found in the statute governing proceedings for an absolute divorce, provides that the court, upon adjudging a divorce or separation, may make such order as it deems just and proper concerning the care, custody and maintenance of the minor children, and may determine with which parent they, or any of them, shall remain. This section authorizes the court to make proper provision for the children as an incident to a decree of divorce or separation, and does not apply in the present case as neither a divorce nor a separation is adjudged. Section 7139, found in the statute governing proceedings for a separation, provides that the court, upon adjudging a separation, may make such order and decree for the suitable support of the wife and her children by the husband as may appear just and proper. This section does not apply to the present case as no separation is adjudged. Section 7140, also found in the statute governing proceedings for a separation, provides:

‘Although a decree for separation from bed and board be not made, the court may make such decree for the support of the wife and her children, or any of them, by the husband, or out of his property or earnings, as the nature of the case renders suitable and proper.’

If this section be given the full effect imported by the language used, it is broad enough to authorize the judgment in controversy. But defendant contends that this section must be construed as authorizing the court to make provision for the custody and support of the children only in those cases in which the proven facts establish a statutory ground for decreeing a separation, and also disclose sufficient reasons for granting only a separate maintenance and not a legal separation; that, if grounds for a decree of separation exist but the wife does not desire such decree, or has waived her right thereto, or the court for some reason deems such decree improper or inadvisable, in such cases and in such cases only, a separate maintenance may be granted under this section.

In support of his contention, he insists that construing this section as authorizing a provision for the custody and support of the children, where no facts are established justifying a legal separation, would make it inconsistent with sections 7137 and 7139. He argues that that part of section 7139 which authorizes the court to make an order providing for the custody of the children and for the maintenance of the wife and children, upon adjudging a separation, would be superfluous and without effect if section 7140 authorized the making of such provision in all cases.

We do not consider these two sections inconsistent. The former is confined by its terms to cases in which a separation is decreed; the latter extends the power to make provision for the custody of the children and for maintenance to cases in which a separation is not decreed. The latter provides for a state of affairs not provided for by the former. Defendant also insists that section 7140, if given the meaning which its broad language seems to import, is inconsistent with section 7137 which provides that:

‘The defendant may prove in his justification the ill conduct of the plaintiff, and, on establishing such defense to the satisfaction of the court, the complaint shall be dismissed.’

Defendant urges that the requirement that the complaint be dismissed, if this defense be established, is inconsistent with the theory that the court retains power to grant relief under section 7140 in such cases. While this argument is not without force, yet the two sections may be harmonized and both be given effect by construing the one as requiring the dismissal of the main action when the ill conduct of the plaintiff is established, and the other as authorizing such provision for the wife and children as the circumstances may render necessary when the main action shall fail. This construction gives an effect to both sections which accords with the evident purpose of the statute when considered as a whole. As throwing light upon the effect which ought to be given to these provisions, we will refer briefly to the nature and extent of some of the rights and obligations upon which they bear, and to some of the rulings made in cases more or less similar.

Under the rules of the early common law, the father was entitled to the custody of his children as against the mother under almost all circumstances, and the cases were few and exceptional in which their custody could be given to her, although she lived apart from her husband on account of his misconduct. The rule governing these relations has been gradually changing until now the rule giving the father the custody of the children as against the mother has been entirely abrogated in this state by the statute which provides that the father and mother, unless unsuitable, ‘are equally entitled to their custody and the care of their education.’ Section 7442, G. S. 1913.

The early decisions which held, in accordance with the former common-law rule, that the court could not give the custody of the children to the mother and require the father to provide for their support, except as an incident to a decree of divorce or of separation, are not in harmony with the present state of the law; and the decisions, which by construction restricted the operation of statutory provisions containing no restrictive terms, to cases in which statutory grounds for a separation had been established, have lost much of their persuasive force. It is now settled that the court, under its general equitable powers and without statutory authority, may provide for a separate maintenance for the wife and her children, although she seeks neither a divorce nor a decree of separation, if she establishes a legal cause for living separate and apart from her husband. Baier v. Baier, 91 Minn. 165, 97 N. W. 671;Stephen v. Stephen, 102 Minn. 301, 113 N. W. 913;Heinze v. Heinze, 107 Minn. 43, 119 N. W. 489;Lang v. Lang, 70 W. Va. 205, 73 S. E. 716,38 L. R. A. (N. S.) 950, and cases cited in note appended to report of that case in Ann. Cas. 1913D, 1129. It is also settled that if a divorce be granted for the misconduct of the husband and the custody of the children be awarded to the wife without any provision concerning their support, the obligation of the husband to support them still continues and may be enforced in a separate action. Spencer v. Spencer, 97 Minn. 56, 105 N. W. 483,2 L. R. A. (N. S.) 851, 114 Am. St. Rep. 695. Cases to the same effect in other jurisdictions are cited in note appended to report of this case in 7 Ann. Cas. 901.

It is also settled in all jurisdictions...