M. F. v. F.
| Decision Date | 30 June 1961 |
| Citation | 40 Del.Ch. 17,172 A.2d 274 |
| Parties | M. F., Individually, and G. F. by her Guardian Ad Litem M. F., Plaintiffs, v. F., Defendant. |
| Court | Court of Chancery of Delaware |
John Biggs, III, Wilmington, for plaintiffs.
Irving Morris and Joseph Rosenthal, of Cohen & Morris, Wilmington, for defendant.
MARVEL, Vice Chancellor.
This action seeks separate maintenance for G. F., a minor, the complaint claiming that defendant, the child's putative father, is liable for the support of such child under the terms of alleged contractual undertakings hereinafter referred to. Plaintiffs alternatively allege that if the contractual provisions pertaining to the child's support are not specifically enforceable in this Court that defendant in any event has the duty to support his infant child and that such duty is enforceable in this Court. Compare Cohen v. Markel, Del.Ch., 111 A.2d 702. The adult parties were not married at the time of the birth of the child, did not thereafter marry, and the mother is now married to one L. F.
During a period of approximately four months following G. F.'s birth out of wedlock on September 23, 1951, defendant readily provided for her needs, and on January 30, 1952 executed the first of two formal support agreements separately acknowledging that he was G. F.'s father. Under the terms of the first agreement defendant undertook in consideration of the withdrawal by the mother of a pending bastardy proceeding to pay fifty dollars per month over a period of two years for the child's support. He also agreed in such written undertaking to renegotiate with the mother his financial obligation towards the child at the end of such period for the purpose of revising it '* * * up or downward depending upon the circumstances and needs of the parties at that time.' The mother agreed on her part to apply such moneys to the proper care of the child, and it is indicative of the parties' understanding of the general and continuing nature of defendant's obligation that he undertook to execute a judgment note in the child's favor in the amount of $10,000 to be recorded in the event of his death prior to the expiration of the original or of any supplemental support agreement, such note to be presented as a claim against his estate.
A second agreement was in due course renegotiated and thereafter entered into on July 20, 1954 under the terms of which defendant agreed to pay the sum of seventy five dollars per month for the child's support over a period of sixty months and again agreed at the expiration of such term to renegotiate the terms of his financial obligation towards the child in the light of circumstances then existing. 1 In addition, defendant again in contemplation of his possible death during the term of the new agreement agreed to deposit with the mother an insurance policy to be maintained in force by him for a period of ten years in return for which the judgment note would be cancelled. It was also agreed that in the event defendant should become unemployed the agreement would be subject to immediate revision notwithstanding its term of five years.
Plaintiffs' first contention is that defendant's contractual undertakings towards the child may be specifically enforced in that the Court may properly fix the amount which defendant should reasonably pay for the child's support notwithstanding the absence of a precise written commitment on his part. In reply, and in support of his pending motion to dismiss defendant points out that the paragraphs of the second agreement pertaining to the intention of the parties to make a future supplemental agreement clearly constitute an agreement to enter into a contract in the future and that there is nothing before the Court capable of being specifically enforced, it being pointed out that what the parties did was merely to agree to negotiate. This defendant has refused to do.
It is settled law in this Court that a party seeking specific performance must rest his case on an agreement which is clear and definite and in which there is no need for the Court to be asked to supply essential contractual elements, Godwin v. Collins, 3 Del.Ch. 189; 4 Houst. 28, and Simms v. Schwartz, 15 Del.Ch. 195, 134 A. 99. Thus it is clear that this Court may not in an action for specific performance make a new contract for the parties, action which would apparently be required in a case such as this in order to grant the relief sought, the parties having merely agreed to renegotiate and revise the essential terms of an agreement after its expiration, such renegotiation to cover the amount of support to be paid and the duration of the extended term. The parties having obviously contemplated the drafting and execution of an entirely new contract, in the light of plaintiffs' case as pleaded and argued it is not in my opinion a proper judicial function to...
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...111 A.2d 702 (1955) ) and, insofar as such an action was for the support of an illegitimate child, it was non-existent (M. F. v. F., Del.Ch., 172 A.2d 274, 276-77 (1961) ). 6 Thus, as we view this case, it is based on a new statutory cause of action intended by the General Assembly to be tr......
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