Luques v. Luques

• Citation: 143 A. 263
• Parties: LUQUES v. LUQUES.
• Decision Date: 10 October 1928
• Court: Supreme Judicial Court of Maine (US)

143 A. 263

LUQUES

v. LUQUES.

Supreme Judicial Court of Maine.

Oct. 10, 1928.

Exceptions from Supreme Judicial Court, York County, at Law.

Herbert L. Luques was granted a divorce from Jessie M. Luques, and the latter petitions that the divorce decree be altered or amended, and that the husband be ordered to pay an additional sum in addition to that ordered toward expenses of education of a minor child. The court found against respondent, and respondent brings exception. Exceptions overruled.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, BARNES, and PATTANGALL, JJ.

F. R. & M. Chesley, of Saco, for petitioner.

Willard & Ford, of Sanford, for respondent.

WILSON, C. J. At a term of the Supreme Judicial Court held in York county in September, 1921, the respondent was granted a divorce from the petitioner for the cause of cruel and abusive treatment. By an agreement between the parties, the justice granting the divorce ordered the respondent to transfer certain real estate and personal property to the petitioner and in addition to pay to the petitioner the sum of $35 weekly for the support of the petitioner and a minor child so long as the petitioner remained unmarried.

No decree was made as to the custody of the minor, who it appears was a granddaughter of the petitioner and respondent, but was adopted by the grandparents upon the death of her own mother at childbirth; but, by consent of the respondent and with the approval of the court, it was evidently a part of the agreement that she was to continue to live with the petitioner, who since the divorce has been appointed her legal guardian.

The petitioner now represents in her petition addressed to a justice of this court under section 14, c. 65, R. S., that the amount ordered to be paid to her in the divorce decree and her personal means are not sufficient to properly educate the minor child and fit her for a vocation in life, she having more than ordinary musical talents, and toward the expense of such education the respondent has refused to contribute, and prays that the former decree be altered or amended and the respondent be ordered to pay an additional sum toward the expenses of her musical education.

At the hearing on her petition, the respondent at the outset objected to the granting of the prayer on the ground that the court was without jurisdiction. The decree in the action for divorce being the result of an agreement between the parties, and not made under the statute, it was contended that the court was without power under the section above cited to modify or alter it.

Counsel now also raise a question as to the liability of the respondent to support the minor child described in the former decree and in the petition, on the ground that there was no evidence of her legal adoption, and also further contend that, even if the liability of the respondent be shown and the court had jurisdiction, the musical education of a minor child is not a necessity, and therefore, a father cannot be compelled by an order under section 14, c. 65, R. S., to supply means for such education.

The court below expressly found against the respondent on all points. It does not appear from the record that the legality of the adoption was raised in the court below. The presiding justice, however, in his decree, found as a fact that the child in. question was the adoptive child of the parties to the proceedings. As there was evidence on which the finding could have been based, no error of law appears from the record by reason of such finding.

Whether the expense of a musical training can be deemed a necessity at common law is not determinative of the power of the court under the divorce statute of this state to order a parent to contribute to the care and support of a minor child, a divorce having been decreed. Section 14, c. 65, R. S., authorizes the court granting a divorce to decree concerning the "care, custody, and support" of any minor children, and any justice on petition may alter it from time to time. The kind and degree of care and support which the court may decree is not specified in or limited by the statute. Stetson v. Stetson, 90 Me. 483, 484, 15 A. 60. It is rather a question of the construction of the terms "care" and "support."

The legislative consideration for the vesting in the courts the authority to decree concerning the care and support of a minor child was the welfare of the child and not the common-law liability of either parent. The terms "care" and "support" as used in the statute are general in their scope, and must be construed in the light of the purpose of the statute and applied according to the circumstances of each case. Call v. Call, 65 Me. 407; Stetson v. Stetson, supra; 9 R. C. L. 483; Husband v. Husband, 67 Ind. 583, 33 Am. Rep. 107. The purpose of this provision of the statute should be held to be to provide for minor children who are deprived of the care and training that naturally flow from a united home, sufficient means, within the ability of the parents, to furnish them not only with support, but with proper training to insure their finally becoming self-supporting and useful members of society.

"Care" and "support" under our divorce statute, therefore, must be held not only to include food, shelter, and clothing, but, whenever a parent is able, suitable training to fit the child for a vocation in life to which his or her natural or special talents may be especially adapted.

While upon a decree of...