Laumeier v. Laumeier

• Decision Date: 19 February 1924
• Parties: LAUMEIER v. LAUMEIER.
• Court: New York Court of Appeals Court of Appeals

237 N.Y. 357

143 N.E. 219

LAUMEIER

v.LAUMEIER.

Court of Appeals of New York.

Feb. 19, 1924.

Action by Byrd Shoemaker Laumeier against Herman H. Laumeier. From an order of the Appellate Division (206 App. Div. 246,200 N. Y. Supp. 606), First Department, affirming an order of the Special Term which dismissed the complaint, plaintiff appeals.

Reversed.

McLaughlin, J., dissenting.Appeal from Supreme Court, Appellate Division, First Department.

Ewing, Alley & Voorhees, of New York City (Caruthers Ewing, of Memphis, Tenn., of counsel), for appellant.

Dudley Dupignac, of New York City, for respondent.

CRANE, J.

On the 8th day of July, 1918, in the city of Salem, state of Illinois, the above parties to this litigation were married and thereafter resided together as husband and wife in the city of St. Louis, state of Missouri. On the 6th day of June, 1919, the wife, Byrd Shoemaker Laumeier, filed in the circuit court of St. Louis a petition for divorce alleging that her husband had refused to provide a home for her and had failed to support her, preferring to reside and continue to live with his parents. In this petition she stated as follows: ‘Plaintiff states that there were no children born of this marriage.’

On the 7th day of June, or the next day after the filing of this petition, the said divorce case was tried in the said circuit court of the city of St. Louis, and thereafter and on the 12th day of June, 1919, the court made and entered its decree of absolute divorce, wherein it was recited and decreed as follows:

‘And the court being now fully advised in the premises, and being satisfied that the plaintiff in an innocent and injured party and entitled to the relief prayed for in her petition, doth order, adjudge and decree that she be absolutely and forever divorced from the bonds of matrimoney existing between her and said defendant, and that she be restored to all the rights and privileges of an unmarried person and that her maiden name of ‘Byrd Shoemaker’ be and is hereby restored to her, and that the defendant pay the costs of this proceeding, and that execution issue therefor.'

There was nothing whatever said in the decree regarding a child, for the simple reason that at the time there was no child in existence-‘no children born of this marriage.’

The fact was that at the time the plaintiff was pregnant, although there was some doubt of the fact. A son was born on December 9, 1919, almost six months after the making and entering of the decree of divorce. In her affidavit submitted upon this motion for judgment, the plaintiff states that at about the time the divorce action was heard, the plaintiff was of the opinion that she was pregnant and went to a doctor about it, and her apprehensions and belief in this behalf were allayed by the assurances of the physician. Thereafter, and when she was convinced of the facts, she says she wrote to the defendant a letter in which she stated:

‘You know how I was worried about my condition at the time of the settlement, and how the doctors assured me they could find nothing the matter with me. I thought that I could rely on what they said, and so I fixed things up with you without any thought of the condition I would be in if my fears about myself should be well founded.’

It is apparent, therefore, that the parties to the divorce action brought before the court for its determination simply their own matrimonial difficulties without any attempt to submit for disposition the care and support of any child, as there was no child at the time born of the marriage, or the support and custody of any child thereafter to be born, as the parties were not aware that the wife was pregnant.

Subsequently the plaintiff moved to New York state, where she established, as she had a right to do, her domicile, and that of her child. The inference to be drawn from the papers on this motion is that the child was never in the state of Missouri, although it is not stated where it was born. The allegation in her affidavit is to this effect:

‘Plaintiff has demeaned herself properly, and the question of the jurisdiction of the Missouri court over a child born after a divorce and which child was never in the jurisdiction of the court has not yet been determined.’

The defendant, in this action, although he had contributed toward the support of his wife by the payment of a cash sum of money at the time of the Missouri divorce, never contributed anything toward the support of the child, refused to support it; in fact, denied all responsibility for it, even alleging that he was not the father of the child. The care, support, and maintenance of the infant son, therefore, fell upon the wife while living here in New York. To recover for the expense which she has been put to in the support, care, and maintenance of her child, which she alleges is the son of the defendant, the plaintiff brings this action in our Supreme Court setting forth in her complaint the fact of the divorce, the subsequent birth of the child, the failure of the courts of Missouri to make any provision for the child as the question was not in issue before it, alleging further the defendant's failure and regusal to support the child, her expenditures for its education, maintenance, and medical expenses, and demanding the sum of $5,000.

The defendant was served personally with the summons and complaint in this state, so that our Supreme Court has jurisdiction of the persons of the parties. It has been said, however, and so held by the lower courts, that the courts in this state have no jurisdiction over the cause of action as it is a matter solely within the control of the Missouri courts which had jurisdiction of the parties and the divorce action in June, 1919. On motion made by the defendant for summary judgment, that is, motion on the complaint and affidavits, the Special Term dismissed the plaintiff's complaint for the reasons above stated, and this has been affirmed by the Appellate Division.

We cannot agree with the courts below regarding this question of jurisdiction. We are of the opinion that both reason and authority are in favor of the plaintiff maintaining this action for the recovery of the money expended necessarily for the support and maintenance of the offspring born under the circumstances here stated.

In considering this question some fundamental facts are to be borne in mind. In the first place, the decree of the Missouri court said nothing about the support of any child and did not provide for it. There was no issue before that court regarding the custody and maintenance of any child. It was not litigated for the reason that there was no child born at the time, and the parties were not sufficiently aware that there might be a child to make its subsequent custody a matter for court order. We therefore start the consideration of the points raised by the defendant as to jurisdiction of our court with the admitted fact that the Missouri courts have not litigated the question or passed upon the issue. The judgment of the court of that state is silent upon the subject. Again it appears that the child was never in Missouri, or at least that the Missouri courts have never had jurisdiction over it; that the mother and child have been living here in New York state; and that this is the state of their domicile. The Missouri courts while disposing of the rights and obligations of the two parties to the divorce action, the husband and wife, made no attempt to dispose of the rights of any subsequently born child. This child has rights which the courts have not disposed of or passed upon. This is a fact which we think the courts below have overlooked. This action brought by the wife is not brought to recover any money for herself; it is brought to recover money spent upon the maintenance and support and education of the child. It is in reality brought for the benefit of and in behalf of the child. The husband did not divorce his child, or dissolve his liabilities to it. And what are those rights? The child is entitled to the support and maintenance by its father. If the father fails to support his child and furnish the necessaries to keep it alive, that is, fail and...