Lambrou v. Berna

• Decision Date: 02 February 1959
• Citation: 148 A.2d 697,154 Me. 352
• Parties: Ann S. LAMBROU v. Ulysses G. BERNA.
• Court: Maine Supreme Court

Page 697

148 A.2d 697

154 Me. 352

Ann S. LAMBROU v. Ulysses G. BERNA.

Supreme Judicial Court of Maine.

Feb. 2, 1959.

Marcel R. Viger, County Atty., Biddeford, for plaintiff.

Charles W. Smith, Saco, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

SIDDALL, Justice.

This is a proceeding under the Uniform Reciprocal Enforcement of Support Act (R.S.1954, Chap. 167), brought by the petitioner against the respondent who lived in Saco in the County of York at the time of the service of the petition. The petition was initiated in the state of Michigan under an act which is similar and substantially the same as our own act. The petitioner alleged in substance that she was married to the respondent in 1945 and that the marriage was dissolved on October 27, 1947. The petition further alleged that 'she is the mother and said respondent is the father of Ann, age 10 years, born on the 10th day of December, 1946,' and that the respondent owed a duty of support to said child and had failed, neglected, and refused to provide such support. The petition was presented to the Circuit Court of the County of Wayne in Chancery of the State of Michigan and was duly certified by the Judge of that court and transmitted to the Superior Court in and for the County of York for disposition. Service was made on the respondent in this state in accordance with the order of court and hearing was held. The respondent was represented by counsel at the hearing and participated therein by testifying in his own behalf. No written pleadings were filed by the respondent. In the course of his examination he testified that his name was spelled 'Berka' and not 'Berna' as alleged in the petition. During the progress of the hearing respondent's counsel requested the Court to send the petition back to the initiating state for clarification before proceeding further with the hearing, on the grounds set forth in respondent's Bill of Exceptions. The motion was denied by the Court, and exceptions were reserved by the respondent. After hearing, the Court found a duty on the part of the respondent to support his minor child Ann and ordered him to pay the sum of $10 per week for such support. The respondent comes to this court on exceptions summarized as follows:

Exceptions I

That the Court erred in notgranting respondent's motion to return the petition to the initiating state for clarification, for the following reasons:

a. That the petition gave only the Christian name of the dependent for whom support was sought and failed to state her full name.

b. That because the respondent's name was not stated correctly in the petition, coupled with indications of the remarriage of the petitioner, there was a reasonable possibility that the alleged dependent child had been adopted, and that no liability for her support could be imposed on the respondent.

c. That the respondent had no opportunity to examine the petitioner to verify or disprove facts stated in her petition and that he was entitled to have pertinent information and evidence furnished by the initiating state.

Exceptions II

That there is no evidence to support the Court's finding of a duty on the part of Ulysses G. 'Berna' to support the child Ann because:

a. The evidence shows the respondent's true and correct name to be 'Berka' and not 'Berna,' and that the only inference which can be drawn from the decree is that the child's name is Ann Berna and that there is no evidence to support such a finding.

b. That there is no evidence to support the finding that the respondent failed, neglected, and refused to provide such support for the dependent Ann in the petition.

c. That the Court failed to consider the standard of living and situation of the parties, the relative wealth and income of the parties, and the responsibility of the obligor for the support of others.

At the time of arguments in the Law Court, the respondent made the further claim, not discussed in his brief, that the petition should be dismissed on the ground that it fails to show that the petitioner had the legal custody of the alleged minor dependent at the time the petition was brought.

The respondent was undoubtedly incorrectly designated in the petition. It is apparent, however, that he was the person intended to be named in the petition, that he was the person upon whom the service was made, and that he was at one time the husband of the petitioner, and he makes no claim otherwise. He does not raise the issue of misnomer as to his own name. In proceedings for the enforcement of a decree in situations such as this, the petitioner undoubtedly would consider it desirable to identify the respondent by his true name and further show that the order was obtained against him under another name.

The Uniform Reciprocal Enforcement of Support Act is of recent origin and many confusing questions of interpretation and procedure have not been resolved by judicial determination. The act is designed to enable a dependent in one state to initiate proceedings in the state of his domicile for the purpose of securing money for support from a person residing in another state who is legally liable for the support of such dependent. See Rosenberg v. Rosenberg, 152 Me. 161, 125 A.2d 863; Smith v. Smith, 125 Cal.App.2d 154, 270 P.2d 613; Keene v. Toth, 335 Mass. 591, 141 N.E.2d 509.

The law is remedial in nature and is to be construed liberally with reference to the object to be obtained, and every endeavor should be made by the courts to render the act operable. See State of Illinois ex rel. Shannon v. Sterling, 248 Minn. 266, 80 N.W.2d 13; Daly v. Daly, 39 N.J.Super. 117, 120 A.2d 510; Commonwealth ex rel. Shaffer v. Shaffer, 175 Pa.Super. 100, 103 A.2d 430, 42 A.L.R.2d 761.

These general principles are to be considered in examining the claims of the respondent.

We consider first the respondent's contention that the petition should be dismissed because it fails to show that the petitioner had the legal custody of the alleged dependent at the time of filing the petition. The respondent cites the case of Mahan v. Read, 240 N.C. 641, 83 S.E.2d 706, as authority for his contention that the petition should be dismissed on this ground. In that case the petition was initiated by a former wife of the respondent, in the state of Arkansas, against the respondent, a resident of North Carolina, for the support of two children of the petitioner and respondent. The Arkansas act, Ark.Stats. § 34-2412, contained the following provision: 'A petition on behalf of a minor obligee may be brought by a person having legal custody of the minor without appointment as guardian ad litem.' No determination of legal custody was alleged or shown. This provision was not in the act of the responding state, North Carolina. The North Carolina law, G.S. § 1-64, provided that in an action in which any of the parties plaintiff are infants, suit must be brought in the name of such infants and in their behalf by general or testamentary guardian or by duly appointed next friend. The North Carolina court held that the rights of the parties are determined in the court having jurisdiction of the respondent, (North Carolina) and the cause in that court must be so constituted as to conform to the laws of North Carolina, and the suit not having been brought in the name of the minors as required by law that there was a fatal defect of parties plaintiff.

The Maine act contains the following provision: R.S.1954, Chap. 167, Sec. 12. 'A petition on behalf of a minor obligee may be brought by a person having legal custody of the minor without appointment as guardian ad litem.' (Emphasis ours.)

Our act, unlike the North Carolina act, does not require the petition to be brought in the name of the dependent. It is sufficient that the petition be brought on behalf of such dependent. The rights of the parties are determined by the law of this state, our court having jurisdiction of the respondent. See Mahan v. Read, supra. An analysis of the petition clearly indicates that it was brought on behalf of an alleged minor dependent, born during wedlock, by the mother of such dependent against its alleged father. Under the provisions of R.S.1954, Chap. 166, Sec. 16, the father and mother are the joint natural guardians of their minor children and are jointly entitled to their care, custody, and control. It is true that there is no allegation in the petition that the petitioner had the legal custody of the minor, but the respondent failed to raise the question of the capacity of the petitioner until after hearing and decree of court. The court had jurisdiction of the subject matter of the petition and obtained jurisdiction of the person of the respondent when he appeared generally and participated in the hearing. Our court in the case of the Rundlett Co. v. Morrison, 120 Me. 439, 443, 115 A. 247, held that a plea of general issue admitted the capacity of the plaintiff to sue. For a discussion of the same principle, see 39 Am.Jur. 979; 67 C.J.S. Parties § 108, p. 1111. The principle of law involved in the determination of the respondent's claim is not dissimilar to that set forth in Rundlett Co. v. Morrison, supra. By appearing generally and participating in the hearing without objecting to the capacity of the petitioner to bring the petition, the respondent waived any right to raise this issue later. It is now too late for him to claim want of capacity on the part of the petitioner.

Under respondent's Exceptions I he contends that the court below erred in not returning the petition to the initiating state for clarification because the petition gave only the Christian name of the alleged dependent and failed to state her full name. The Maine act provides that the petition ...