Morris v. Morris
| Decision Date | 16 May 1930 |
| Docket Number | 13,836 |
| Citation | 171 N.E. 386,92 Ind.App. 65 |
| Parties | MORRIS v. MORRIS |
| Court | Indiana Appellate Court |
Rehearing denied July 30, 1930.
Transfer denied January 6, 1931.
From Marion Superior Court (A15,647); Byron K. Elliott, Judge.
Proceeding by John Robert Morris to obtain relief from the provisions of a divorce decree requiring him to pay to his former wife the sum of $ 50 per month for the support of their minor son. The mother filed a special answer setting up the fact that the son desired to enter college and that the stipulated amount would be necessary to meet the expense incident to his college education, and the facts averred therein were established at the hearing. The court denied the petition and the plaintiff appealed.
Reversed.
Bernard Stroyman, for appellant.
Jesse E. Martin, for appellee.
May 5, 1922, the parties to this appeal, then husband and wife, were divorced on complaint of appellee; as a part of the decree, appellee was given the custody of their child John Robert Morris, Jr., then nine years of age, and alimony in the sum of $ 9,500, payable in monthly installments of $ 100; a further provision of the decree was that appellant should pay to appellee, until further order of the court, the sum of $ 50 per month for the support of the child. Thereafter, in May, 1929, appellant filed with the court which had granted the divorce his petition, in which is set forth, in addition to facts above stated, that, after the divorce, he remarried; that his family now consists of his wife and her two minor children by a former marriage; that his gross annual income from his business, that of wholesale coal dealer, is not so good as when the divorce was granted, and is from $ 3,000 to $ 3,500, out of which he is required to pay the monthly installments of alimony to appellee; that, outside of his coal business, he has no income and no property, and is not financially able to continue the payments for the support of his son John Robert Morris, Jr., who has arrived at the age of 17 years, has completed the high-school course of the public schools, is physically and mentally strong, and well able to support himself. Prayer, that petitioner be relieved from making further payments toward the support of the minor son, and that the decree be so modified.
To the petition, appellee and the son entered appearance and filed answer in denial. Appellee also filed a special answer setting up that the minor, still in her custody, "is desirous of entering college in the fall of 1929 to continue and complete his education, and that fifty dollars per month is necessary to meet the expense incident to his attendance at college; that, if the judgment in this cause be modified and defendant relieved from the further payments as prayed for in his petition, said minor child will be unable to enter college as he desires, and, to support and maintain himself properly, will be compelled to go to work."
On a trial of the cause, there was competent evidence to establish the facts set forth in appellant's petition; also the material averments of appellee's special answer. From a judgment denying the petition, this appeal is prosecuted.
There is but one question involved in this appeal: Under the facts, did the court have the right to require appellant to provide funds to defray the expenses of a general college education for his son.
It is fundamental that the legal duty of a father to provide for his minor child is confined to necessaries. It is also well established that necessaries, as applied to the duty of a father toward his minor child, is a relative term, its scope depending upon the station in life of the parties, and is to be determined in each instance from the particular facts and...
To continue reading
Request your trial