McQuade v. McQuade, No. 19458

Docket NºNo. 19458
Citation358 P.2d 470, 145 Colo. 218
Case DateDecember 30, 1960
CourtSupreme Court of Colorado

Page 470

358 P.2d 470
145 Colo. 218
Richard A. McQUADE, Plaintiff in Error,
v.
Marie McQUADE, Defendant in Error.
No. 19458.
Supreme Court of Colorado, En Banc.
Dec. 30, 1960.

Page 471

Nathan Lee Baum, Denver, for plaintiff in error.

No appearance for defendant in error.

[145 Colo. 219] SUTTON, Chief Justice.

In previous litigation between these parties, under the statute formerly in effect, viz., C.R.S. '53, 46-1-4, the wife sued the husband for separate maintenance and the husband sued the wife for divorce, both charging cruelty. The two actions were consolidated for trial, whereupon the court found that both had in fact been guilty of cruelty and dismissed the complaints.

The instant action filed November 18, 1959, designated a suit in equity for maintenance and support, was commenced by the wife some eight months after entry of final judgment in the previous litigation. In the complaint she prayed for an order of support for herself and the minor child of the parties who is living with her, recovery of certain sums totaling $1,000.00 that she had personally spent to support the

Page 472

child, attorney's fees, and costs, alleging that her husband had deserted her and was refusing adequate support to the child.

The trial court entered an order awarding the wife the sum of $75.00 a month as future support for the child and $100.00 as attorney's fees.

Defendant, husband, by writ of error, urges as grounds for reversal substantially the same arguments raised in the trial court: (1) that the amended complaint does not state a claim upon which relief can be granted, (2) that the ruling in the previous separate maintenance and divorce action was res adjudicata as to all issues presented in the instant action, (3) that the court lacked jurisdiction of the subject matter, and (4) that the court made no finding of the fact of desertion and that no desertion in fact existed, and (5) that the court erred in awarding attorney's fees.

Allegations (1), (3) and (4) are premised upon the contention of defendant that in the absence of a showing of some ground upon which a divorce might be granted no claim for relief can exist to compel the father of a [145 Colo. 220] minor child to provide adequate support for such child in situations where he has refused and is continuing to refuse to do so. Counsel cites no authority for such contention, and we are not persuaded that any can be found supporting such theory as a valid or reasonable principle of...

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13 practice notes
  • People v. Elliott, No. 26085
    • United States
    • Colorado Supreme Court of Colorado
    • August 12, 1974
    ...children-has for decades in Colorado been recognized as [186 Colo. 69] the primary responsibility of the father. McQuade v. McQuade, 145 Colo. 218, 358 P.2d 470; Garvin v. Garvin, 108 Colo. 415, 118 P.2d 768; Desch v. Desch, 55 Colo. 79, 132 P. 60. See generally 59 Am.Jur.2d Parent and Chil......
  • Edwards v. Desbien, Civil Action No. 15-cv-00333-GPG
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • April 15, 2015
    ...custodial parent, acting on behalf of the child. See In re Marriage of Murray, 790 P.2d 868 (Colo. App. 1989) (citing McQuade v. McQuade, 358 P.2d 470, 472 (1960)). Once a child attains nineteen years of age, the non-custodial parent's obligation to pay child support terminates. See COLO. R......
  • Zimmerman v. Starnes, Civ. A. No. 82-Z-2001
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • January 13, 1984
    ...right to support belongs to the child. . . . The rights of the child exist independent of the rights of the parent." McQuade v. McQuade, 145 Colo. 218, 358 P.2d 470, 472 (1960). See also County of Clearwater, Minn. v. Petrash, 198 Colo. 231, 598 P.2d 138, 139 (1979) (child has right to supp......
  • T.W. v. M.C. (In re Interest of Minor Children Baby A), Supreme Court Case No. 14SC1045
    • United States
    • Colorado Supreme Court of Colorado
    • December 21, 2015
    ...the support must be "for the care of the child." Child support is a right that belongs exclusively to the child. McQuade v. McQuade, 145 Colo. 218, 358 P.2d 470, 472 (Colo.1960). Therefore, the support must go to the children's daily care and cannot be used for expenditures made for the par......
  • Request a trial to view additional results
13 cases
  • People v. Elliott, No. 26085
    • United States
    • Colorado Supreme Court of Colorado
    • August 12, 1974
    ...children-has for decades in Colorado been recognized as [186 Colo. 69] the primary responsibility of the father. McQuade v. McQuade, 145 Colo. 218, 358 P.2d 470; Garvin v. Garvin, 108 Colo. 415, 118 P.2d 768; Desch v. Desch, 55 Colo. 79, 132 P. 60. See generally 59 Am.Jur.2d Parent and Chil......
  • Edwards v. Desbien, Civil Action No. 15-cv-00333-GPG
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • April 15, 2015
    ...custodial parent, acting on behalf of the child. See In re Marriage of Murray, 790 P.2d 868 (Colo. App. 1989) (citing McQuade v. McQuade, 358 P.2d 470, 472 (1960)). Once a child attains nineteen years of age, the non-custodial parent's obligation to pay child support terminates. See COLO. R......
  • Zimmerman v. Starnes, Civ. A. No. 82-Z-2001
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • January 13, 1984
    ...right to support belongs to the child. . . . The rights of the child exist independent of the rights of the parent." McQuade v. McQuade, 145 Colo. 218, 358 P.2d 470, 472 (1960). See also County of Clearwater, Minn. v. Petrash, 198 Colo. 231, 598 P.2d 138, 139 (1979) (child has right to supp......
  • T.W. v. M.C. (In re Interest of Minor Children Baby A), Supreme Court Case No. 14SC1045
    • United States
    • Colorado Supreme Court of Colorado
    • December 21, 2015
    ...the support must be "for the care of the child." Child support is a right that belongs exclusively to the child. McQuade v. McQuade, 145 Colo. 218, 358 P.2d 470, 472 (Colo.1960). Therefore, the support must go to the children's daily care and cannot be used for expenditures made for the par......
  • Request a trial to view additional results

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