Manners v. State

• Decision Date: 23 December 1936
• Docket Number: 26667.
• Citation: 5 N.E.2d 300,210 Ind. 648
• Parties: MANNERS v. STATE.
• Court: Indiana Supreme Court

5 N.E.2d 300

210 Ind. 648

MANNERS v. STATE.

No. 26667.

Supreme Court of Indiana.

December 23, 1936

James R. Manners was convicted of deserting three children leaving them without reasonable means of support, and he appeals.

Reversed with instructions to sustain defendant's motion for new trial.

Appeal from Circuit Court, Clark County; Geo. C Kopp, Judge.

James L. Bottorff and L. A. Douglass, both of Jeffersonville, for appellant.

Philip Lutz, Jr., Atty. Gen., and Caleb J. Lindsey, Asst. Atty Gen., for the State.

FANSLER, Judge.

Appellant was indicted, tried, and convicted upon a charge that he deserted three of his children, leaving them without reasonable means of support.

Error is predicated upon the overruling of motions in arrest of judgment and for a new trial.

Section 10-1401, Burns' Ann.St.1933, section 2885, Baldwin's Ind.St.1934, provides that: ‘ Whoever deserts his or her child or children and leaves them, or any of them, without reasonable means of support and continuing support, or a charge upon any county or township of this state, shall be deemed guilty of a felony.’ It appears without controversy that appellant and his wife were divorced prior to the time at which the crime is charged to have been committed; that in the divorce proceedings the wife was given the custody of the children; that an order was made for the payment of certain sums to her for their support; and that the allowance so made was ordered paid to the clerk of the court which granted the divorce.

Section 3-1219, Burns' Ann.St.1933, section 928, Baldwin's Ind.St.1934, provides that: ‘ The court, in decreeing a divorce, shall make provision for the guardianship, custody, support and education of the minor children of such marriage.’ Under this statute, the court has complete jurisdiction to provide for the support and custody of minor children, and it is well settled that the jurisdiction continues during the minority of the children, and that the decree may be changed or modified. It is also well established that the court has power to enforce its orders for support by contempt proceedings. Since it is conceded that the custody of the children in question was taken from the father by the judgment of the court in the divorce proceedings, there is, and can be, no evidence that he deserted them until such time as the decree of the court is modified and their custody restored to him. The statute declares against one who ‘ deserts' and leaves his children without support. Desertion is a necessary element of the offense, and where desertion is not, and cannot be, proven, there can be no conviction under this statute. There is another statute (Burns' Ann.St.1933, § 10-1402) which makes neglect or refusal to provide children under the age of fourteen with ‘ necessary and proper home, care, food and clothing’ a felony. But the indictment here is under the desertion statute.

There is no evidence or contention here that the children in question were left a charge upon the county or township, nor is there any evidence that they were in want, or without a proper home, care, food, or clothing. If the father complied with the court's order, as to payments to the mother for support of the children, the mother would be chargeable with the responsibility of supporting them, and, if some one else voluntarily assumed that responsibility, there would be no basis for a charge that the father had failed in his duty. It was said in Ramsey v. Ramsey (1889) 121 Ind. 215, 221, 23 N.E. 69, 71,6 L.R.A. 682, that: ‘ The right to the custody and services of the child, and the obligation to support and educate, are reciprocal rights and obligations, unless otherwise fixed by judicial decree.’ See, also, Husband v. Husband (1879) 67 Ind. 583, and Hedrick v. Hedrick (1891) 128 Ind. 522, 26 N.E. 768. We are not unmindful of the case of State v. Yocum (1914) 182 Ind. 478, 106 N.E. 705, an appeal by the state, in which it is held that a prosecution will lie against a father of children under the age of fourteen who neglects to provide them with a proper home, care, food, and clothing (section 10-1402, Burns' Ann.St.1933, section 2886, Baldwin's Ind.St.1934), notwithstanding his wife had procured a decree of divorce awarding her the custody of the children, and an allowance for their support. It appears, however, that the father had entirely failed to comply with the order for support, and that the mother was without means of supporting them. But the same section of the statute makes it a felony for the mother to willfully neglect or refuse to provide for her children when charged by law with the maintenance and support thereof, and therefore if the father complied with the court order requiring him to contribute to the support of the children, the mother would be at least primarily responsible for their maintenance and support. It is inconceivable that a jury might be free to find a father guilty of a felony for leaving his children without ‘ reasonable’ means of support, while he is making that contribution to their support which it was adjudged and decreed that he should make by a court having full jurisdiction to determine the matter. If his contribution to the support of his children is inadequate, the remedy is a modification of the decree. The case should not be considered as authority, at least, in cases where there is a controversy as to whether the husband is complying with the order of the divorce court in respecy to the support of the children and where it does not appear that the children are not being supported.

There is evidence that the father did not pay all of the support money required of him by the decree to the clerk of the court, and that only a part of it was so paid. There is undisputed evidence, however, that the father paid bills for groceries at the request of his wife, exceeding the deficiency in the payments to the clerk. Sole jurisdiction to determine whether the court's order has been complied with is in the court making the order. The requirement that the money be paid into the clerk of the court is not of the essence of the order. It is merely directory, and if the mother accepted payments directly to her, in money or its equivalent, it...