Leibold v. Leibold

• Decision Date: 31 January 1902
• Citation: 62 N.E. 627,158 Ind. 60
• Parties: LEIBOLD v. LEIBOLD.
• Court: Indiana Supreme Court

158 Ind. 60

62 N.E. 627

LEIBOLD

v.LEIBOLD.

Supreme Court of Indiana.

Jan. 31, 1902.

Appeal from superior court, Marion county; John W. Holtzman, Special Judge.

Action by Louise Leibold against Frank J. Leibold. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Coleman & Clark and Smith Mann, for appellant. P. & L. M. Rappaport, for appellee.

MONKS, J.

This is a proceeding by appellee to obtain the custody of Frank J. Leibold, Jr., and Edwin E. Leibold, her minor children, from appellant, their father. Appellant and appellee are husband and wife, but have not lived together since 1897. The proceeding resulted in a judgment awarding the custody of said children to appellee until the further order of the court, and that appellant pay to the clerk of the court, for the maintenance and support of said minor children, the sum of $5 each week until the further order of the court. Appellant insists that the right of the wife to compel the father to maintain and support their children is statutory, and can only be enforced under the acts of 1881 (Acts 1881, p. 527) being sections 6977-6983, Burns' Rev. St. 1901 (sections 5132-5138, Rev. St. 1881; sections 5132-5138, Horner's Rev. St. 1901), or in a divorce case under section 1058, Burns' Rev. St. 1901 (section 1046, Rev. St. 1881; section 1046, Horner's Rev. St. 1901), and that the second paragraph of complaint is not sufficient, because it does not allege the facts required by said act of 1881. This proceeding, however, was not brought under the act of 1881; nor does the sufficiency of said second paragraph depend upon that act. The power of a court of chancery to control not only the estate, but the person and custody, of infants, is well settled. 2 Story, Eq. Jur. (13th Ed.) §§ 1341, 1341a, 1345, 1346; 3 Pom. Eq. Jur. (2d Ed.) § 1307; Cowls v. Cowls, 8 Ill. 435, 44 Am. Dec. 708. The Marion superior court has full jurisdiction of all suits in equity (sections 1404, 1366, Burns' Rev. St. 1901; sections 1351, 1314, Rev. St. 1881; sections 1351, 1314, Horner's Rev. St. 1901; Noerr v. Schmidt, 151 Ind. 579, 582, 51 N. E. 332), and therefore has said power except where there is a statute providing otherwise. It is the duty of the father to support his minor children. Kinsey v. State, 98 Ind. 351, 357; Schouler, Dom. Rel. § 237; Bish. Mar. & Div. §§ 1154, 1222, 1224. The obligation to support and educate a child, and the right to the custody and services of such child, are reciprocal obligations and rights, unless otherwise fixed by judicial decree. Ramsey v. Ramsey, 121 Ind. 215, 221, 23 N. E. 69; Bish. Mar. & Div. (Ed. 1891) §§ 1154, 1220, 1224. When, however, the father has so conducted himself that it is necessary and proper to deprive him of the custody of his minor child, he is not thereby released from his duty to support such child. Bish. Mar. & Div. (Ed. 1891) §§ 1223, 1224. As was said in the authority last cited, “It is not the policy of the law to...