McQuade v. McQuade

• Decision Date: 30 December 1960
• Docket Number: No. 19458,19458
• Citation: 358 P.2d 470,145 Colo. 218
• Parties: Richard A. McQUADE, Plaintiff in Error, v. Marie McQUADE, Defendant in Error.
• Court: Colorado Supreme Court

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.

Nathan Lee Baum, Denver, for plaintiff in error.

No appearance for defendant in error.

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 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 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 law.

Both the common law and Colorado case law establish that the primary obligation for the support of a minor child lies upon its father. See Garvin v. Garvin (1941), 108 Colo. 415, 118 P.2d 768, 769, and Desch v. Desch (1913), 55 Colo. 79, 132 P. 60. The fact that the mother is self-supporting does not serve to relieve the father of his obligation. The father being under a legal duty...