McCloskey v. McCloskey

• Decision Date: 18 March 1902
• Citation: 93 Mo. App. 393,67 S.W. 669
• Parties: McCLOSKEY v. McCLOSKEY.
• Court: Missouri Court of Appeals

67 S.W. 669

93 Mo. A. 393

McCLOSKEY v. McCLOSKEY.

Court of Appeals of St. Louis, Missouri.

March 18, 1902.

DIVORCED HUSBAND — LIABILITY FOR MAINTENANCE OF CHILDREN — EVIDENCE — INSTRUCTIONS.

1. On an issue whether a wife prevented her husband from enjoying the society of their children, he testified that he did not know why they avoided him, "except by the advice of their mother and attorney." The wife, children, and a servant testified that the wife did not keep the children away from the husband, but that they were afraid of him. Held insufficient to show that the wife withheld the custody and society of the children from the husband.

2. A divorced father is liable to his former wife for expenses incurred by her in the support of their minor children, though denied their custody by her, he having an ample remedy to acquire their custody if entitled thereto.

3. A charge that the husband could not be liable to the wife for such expenses, unless incurred after the husband's neglect or refusal to suitably maintain the children on demand being made on him, was properly refused, where the evidence showed conclusively that he did refuse absolutely to support the older children, and conditionally the younger ones, and the condition was one which he had no legal right to impose.

Appeal from St. Louis circuit court; W. B. Douglas, Judge.

Action by Nellie McCloskey against John McCloskey. Judgment for plaintiff, and defendant appeals. Affirmed.

John M. Holmes, for appellant. Campbell & Thompson, for respondent.

GOODE, J.

Prior to January, 1898, appellant and respondent were husband and wife, residing in the city of St. Louis, Mo., with their six children, of various ages, though all of them were minors during the period embraced by the account for which the respondent sued. The parties were married in 1877, but ceased to live together some time before 1896, in February of which year John McCloskey instituted a divorce suit against his wife, who filed a cross bill asking for alimony pendente lite and for a decree for the maintenance of the children. That case was in this court, and is reported in 68 Mo. App. 199, but it is in no way material to the determination of the present one, as no point about it is made by either party. Suffice to say, both the bill and cross bill were dismissed in May, 1897. The husband and wife lived in the same house in St. Louis, but in a state of total estrangement, until December 11, 1896, when the appellant left the house and state, repairing afterwards to North Dakota, where he obtained a Dakota divorce, based on constructive service, in January, 1898. He stated in his brief that the decree in the Dakota case awarded him the custody of his children, but the decree is not contained in the record, nor any evidence to show that it did more than grant him a divorce. This action was instituted on the 18th day of May, 1900, by Nellie McCloskey, the divorced wife of John McCloskey, to recover from him the necessary expense of boarding, clothing, and otherwise providing for their six children, who had remained all the time with their mother from December 11, 1896, when McCloskey left home, to the 1st day of May, 1900, less the wages earned by the three older children, which she allows as a credit on the account. The circuit court rendered judgment in her favor, from which judgment the present appeal was taken.

There is a point made (but very little, if any, conflict in the evidence) concerning whether Mrs. McCloskey prevented her husband from enjoying the society of his children and participating in the care of them prior to the time he left home, or whether the children were terrified by him so that they shunned him. He gives one version of this matter, and she and the children another, and his version is principally, if not wholly, his opinion, instead of facts. What is conceded is that he left home December 11, 1896, went to Dakota, and thereafter procured the divorce as stated, and that he took none of the children with him, nor asked to do so. He says himself he saw all of them the day he left, told them the way he and their mother were living was setting them a bad example, and he would stay away until the trouble was over. It is also admitted the mother supported the children from that time on, and that the account filed by her was reasonable and accurate. Appellant plants himself squarely on the proposition of law that he is not answerable to his wife for the expense she was put to in supporting his children if he was denied their custody and society, he contending that he was always willing to support them after he left home if they would come to him, in which contention the evidence does not bear him out, as will be immediately seen.

The following correspondence passed between the appellant and his wife's attorney subsequent to the dismissal of the first divorce suit:

"St. Louis, May 18, 1897. John McCloskey, Esq., 1211 Pine Street, City — Dear Sir: I write on behalf of your wife and smaller children to know if you desire to make arrangements for their support in the shape of a weekly or monthly allowance, or in any other way that may be agreeable to you and your wife. Unless some arrangement is made, I shall have to institute a suit on their behalf for maintenance. Not desiring to put you to extra expense of court costs (your late experience probably having acquainted you with what they amount to) unless it is absolutely necessary, I write to suggest that the matter be adjusted out of the court. As this is the last week for filing suits to the June term of court, I ask an immediate reply. Very respectfully, Virgil Rule."

"Virgil Rule — Sir: Replying to your communication, I am ready, upon delivery into my custody of my children Nellie, Mary, and Clarence, to support and maintain them according to my condition in life. As to the others, I recognize no liability. John McCloskey."

Appellant further testified that he wanted the three younger children, but did not want the three older ones, and never made any request for them. The younger children were eleven, seven, and four years of age at the time this action was instituted, so that they must have been very young when the appellant left home; in fact, the youngest was but a few months old.

Assignments of error are based on the refusal of the declarations of law requested by appellant, and the following will show his theory of the case: "The court declares the law to be that a father, while charged with the obligation of supporting his children, is also entitled to the enjoyment of their society and companionship and assistance; and should the court, sitting as a jury, be satisfied from the evidence that the defendant was, during the times mentioned in the petition of plaintiff, able and willing to support his children in said petition mentioned, or any of them, on condition that he should enjoy their custody, society, companionship, and assistance, and further find that the custody, society, companionship, and assistance of any of said children was withheld from him by plaintiff, then plaintiff cannot recover in this action for any amounts which she may have expended in the support and maintenance of such children whose custody and society was by her withheld from defendant." "The court declares the law to be that though the fact that plaintiff furnished to the children of the plaintiff and defendant the maintenance set forth in the petition is not in dispute under the pleadings in this case, yet the plaintiff cannot recover from the defendant the cost of such maintenance furnished her said children, while living with her separate and apart from defendant, unless she has established to the satisfaction of the court sitting as a jury, by a preponderance of evidence, that such maintenance was furnished by her only after the neglect or refusal of the defendant to suitably maintain such children, upon demand being made upon him for such maintenance."

As to the three older children, it is at once apparent that appellant cannot justly complain of the lower court's refusal to accept his theory that he was deprived of their custody and companionship, and hence is not responsible for their support; for he distinctly and unequivocally swore he never asked for those children and did not want them. Moreover, his answer to...