McNulty v. Heitman

Decision Date13 May 1980
Docket NumberNo. 40991,40991
Citation600 S.W.2d 168
PartiesGenevieve McNULTY, by and through her next friend Margaret Daniels McNulty, and Margaret Daniels McNulty, Respondents, v. Henri A. HEITMAN, Appellant.
CourtMissouri Court of Appeals

Love, Lacks, McMahon & Schwarz, Chester A. Love, Clayton, for appellant.

Schramm, Pines & Marshall, Paul H. Schramm, and Gary T. Soule, Clayton, for respondents.


This case was instituted in the circuit court of the City of St. Louis, by the filing of a petition for declaratory judgment and as amended for support, in which it was alleged that respondent Margaret Daniels McNulty is the mother of Genevieve McNulty. It further alleged that appellant is the father of Genevieve McNulty, and in her prayer for relief prayed that the court enter its judgment and decree declaring appellant to be the father of Genevieve McNulty, ordering money for the support of Genevieve McNulty, ordering appellant, Henri A. Heitman to make payment for the support of Genevieve McNulty retroactively, and ordering appellant to pay to respondent Margaret Daniels McNulty a reasonable sum for attorney fees and for her costs.

The appellant does not challenge the sufficiency of evidence upon which the trial court found the appellant to be the natural father of Genevieve McNulty. However, he challenges that portion of the court's decree which ordered the appellant to reimburse the respondent for past support for their child, the order of present support of the child and the payment of respondent's attorney's fees.

Appellant's first assignment of error is that the trial court erred by entering a judgment against appellant in favor of respondent to reimburse the respondent for expenses that respondent incurred in supporting appellant's and respondent's illegitimate child. Appellant claims there is no authority in Missouri for the proposition that the natural mother of an illegitimate child may recover against the natural father for past expenses the mother incurred in supporting the child. We disagree.

At common law the father of an illegitimate child had no duty to support his illegitimate offspring. H. Clark, Law of Domestic Relations § 5.1 (W.1968). The illegitimate child had to look to its mother for succor. Id. at 155 n. 6. However by 1576 the father of an illegitimate child could be made to support his illegitimate offspring under the Elizabethan Poor Law by instituting a suit known as a bastardy proceeding. Id. at 162. Although the bastardy proceeding was part of English jurisprudence when the common law was received in this country, it was not recognized in Missouri because the Elizabethan Poor Law which created the bastardy proceeding was local to England and did not extend to the colonies. Easley v. Gordon, 51 Mo.App. 637 (1892). 1 The inability of an illegitimate to compel support from his father remained the law in Missouri until 1968. R____ v. R , 431 S.W.2d 152 (Mo.1968).

In R v. R the Missouri Supreme Court construed §§ 452.150, 452.160, RSMo 1959 and § 559.353, RSMo Supp.1967 to afford illegitimate children a right of support equal to that enjoyed by legitimate children under the compulsion of two U.S. Supreme Court cases Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) and Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968).

In Levy the court held that Louisiana could not deny illegitimate children the right to sue for their mother's wrongful death (1) when the illegitimate children were dependent on their mother, (2) when in her death they suffered wrong in the sense that any dependents would have suffered on the death of their mother and (3) when Louisiana permitted legitimate children to maintain wrongful death actions and even allowed illegitimate children to recover under Louisiana's workmen's compensation law in the event of the death of their parents. The court reasoned that since the legitimacy or illegitimacy of the children's births bore no rational relation to the injury suffered, it was invidious to discriminate against them when no action, conduct or demeanor on their part was possibly relevant to the harm their mother suffered.

In Glona the court held that it was also impermissible for Louisiana to bar the mother of an illegitimate child from recovering for the death of her illegitimate son because there was no rational basis between the state's interest in promoting legitimate family relationships and barring recoveries for such claims since it is far fetched to assume that not allowing such claims would promote legitimate family relationships. 2

The right of a mother of an illegitimate to recover for expenses she has incurred in the support of her illegitimate child against the child's father has been recognized in Missouri. Mueller v. Jones, 583 S.W.2d 222 (Mo.App.1979). We further note that a married man has a duty to support his minor children in accordance with his means and that in the event he does not supply such necessities, he is liable to one who furnishes them unless furnished gratuitously. Smith v. Smith, 300 S.W.2d 275 (Mo.App.1957).

Respondent, as the mother of appellant's illegitimate daughter, was under a duty to support that child. H. Clark, Law of Domestic Relations at 155 n. 6. Since respondent had a duty to support appellant's illegitimate daughter, she did not furnish the support gratuitously. It would be incongruous to grant illegitimates a right of support from their parents equal to that of legitimate children but deny to mothers of illegitimates a claim against the fathers of their illegitimate children when mothers of legitimate children have a claim of support against the fathers of their legitimate children. We therefore hold that appellant is required to pay the claim of respondent.

Appellant's second contention is that the court erred by awarding plaintiff $63,680 as reimbursement for expenses incurred in the care and support of their natural daughter because the award was barred by laches and the statute of limitations.

Appellant's claim raises legal and equitable issues. At common law the father of minor legitimate children had a duty to support them in accordance with his means. Smith v. Smith, supra. Yet not every legal right afforded an adequate legal remedy. At common law, in the absence of a special statute, the mother would have to amass bills on behalf of the child before she could recover against the father as he could not be made to pay for expenses not yet incurred. Lodahl v. Papenberg, 277 S.W.2d 548 (Mo.1955); Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762. In response to the undue rigidity and inadequacy of the common law, equity developed as a separate and distinct system of jurisprudence. D. Dobbs, Remedies § 2.1 (W.1973).

Despite the fact that there is one form of action in Missouri the civil action and that suits are no longer labeled actions at law or in equity, it is still important to distinguish between law and equity in matters of substance and remedy as the underlying concepts have been largely retained. Hall v. Hall, 506 S.W.2d 42 (Mo.App.1974); Molasky ex rel. Clayton Corp. v. Lapin, 396 S.W.2d 761 (Mo.App.1965); Rule 42.01. Historically, cases have distinguished between law and equity on the basis of remedy sought. Equitable remedies are coercive, commanding the defendant to do or refrain from doing a particular act and subjecting him to punishment should he disobey. Legal remedies do not command the defendant to do anything. They adjudicate the plaintiff's rights vis-a-vis the defendant's and leave the judgment to be enforced by attachment or other suitable process. D. Dobbs, Remedies at § 2.1.

Because of its origins as a balm for the undue rigidity and inadequacy of the common law, equity will not grant relief where the law grants an adequate remedy. State ex rel. General Dynamics Corp. v. Luten, 566 S.W.2d 452 (Mo. banc 1978). Due to the inadequacy of the common law, courts have exercised their equitable jurisdiction in awarding child support decrees guaranteeing adequate support for minors before the expense is incurred. The power is said to come from the courts inherent equitable power to care and provide for minors. Urbanek v. Urbanek, 503 S.W.2d 434 (Mo.App.1973). The purpose of this procedure is to obviate the expense and delay of independent actions until after the expense in incurred on the minor's behalf. Lodahl v. Papenberg; Kelly v. Kelly. Therefore a mother has the option, if she wishes, to seek support before the expense is incurred, equitable remedy or furnish the necessary support and then seek a legal remedy to recover the reasonable value of her expenses. 3 Mayes v. Mayes, 342 Mo. 401, 116 S.W.2d 1 (1938); Broemmer v. Broemmer, 219 S.W.2d 300 (Mo.App.1949).

Respondent opted a legal remedy. She supported her daughter for approximately 18 years before she filed suit to recover for the expenses she had already incurred in the support of her daughter. The appellant pleaded laches. Since laches is an equitable defense and is available only when an equitable remedy is sought, it could not operate to bar her claim. Bevier v. Graves, 213 S.W. 74 (Mo.1919).

However if laches could have operated to bar respondent's claim, appellant still would not have prevailed. To establish laches the defendant must show that the unreasonable delay operates to the prejudice of the other party. State ex rel. McIntosh v. Rainey, 397 S.W.2d 344 (Mo.App.1965). Whether there has been an unreasonable delay which operates to the prejudice of the other party must be determined from all the evidence and circumstances adduced at trial. Obernay v. Chamberlin, 506 S.W.2d 446 (Mo. banc 1974). In the case at bar, appellant neither appeared or testified nor presented any evidence to show prejudice to him in respondent's dawdle in pursuit for reimbursement. The trial judge did not enter any formal findings of fact...

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