Mund v. Mund

• Decision Date: 23 May 1958
• Docket Number: No. 37296,37296
• Citation: 252 Minn. 442,90 N.W.2d 309
• Court: Minnesota Supreme Court
• Parties: Marion A. MUND, Respondent, v. Robert B. MUND, Appellant.

Page 309

90 N.W.2d 309

252 Minn. 442

Marion A. MUND, Respondent, v. Robert B. MUND, Appellant.

No. 37296.

Supreme Court of Minnesota.

May 23, 1958.

Syllabus by the Court

1. M.S.A.1949, § 544.32, which has been superseded by Rule 60.02, Rules of Civil Procedure, did not prohibit the amendment of a divorce decree as to support or custody of children, but only prevents modification with respect to the marital status of the parties.

2. The district court is given broad power to modify a judgment of divorce by M.S.A. § 518.18, which provides that the court may revise and alter an order concerning the care, custody, and maintenance of childen and may make new orders concerning them as circumstances of the parents and the interests of the children may require.

3. The obligation of parents to support their children derives from the legal and natural duty as members of society to take care of them until they are old enough to take care of themselves.

4. Where in a divorce action the parents or their attorney, either through design or error, by stipulation or evidence, omit mention of the fact that there is issue of the marriage and fail to make provision for such issue, the court under its continuing jurisdiction to modify, alter, or amend the divorce decree may correct the error and provide for the support of the child omitted in the original order.

5. There can be no estoppel by judgment in a divorce action on the subject of support and custody of issue of the marriage, where that subject was withheld from consideration by the court and was not adjudicated.

6. The presumption of legitimacy of a child conceived after marriage applies to cases of premarital conception, particularly where the husband knew at the time of the marriage that his wife was pregnant.

7. In proceedings to require payment of support of a child born during wedlock but conceived prior thereto, the presumption of legitimacy does not deprive the putative father of the right to be heard on the issue as to whether or not he is, in fact, the father of the child. Under circumstances where the complaint in the divorce action makes no definite allegation that the defendant is the father of the child, where no mention of the child is made in pretrial stipulation, and where findings of fact that there is no issue of the marriage were accepted by the plaintiff's guardian ad litem and her attorneys, the putative father is entitled to a hearing on the issue of paternity prior to entry of an order requiring payment by the defendant of support.

Anthony L. Fratto, St. Paul, for appellant.

Lionel K. Hvolboll, Albert Lea, for respondent.

MURPHY, Justice.

This is an appeal from a judgment entered in the District Court of Freeborn County by which the defendant was required to pay the sum of $40 per month to the plaintiff-mother for the support of a minor child alleged to be the issue of the marriage of the parties. Plaintiff and defendant were married on January 22, 1951, while the defendant was in military service. A birth certificate, recorded in Wright County, shows the defendant to be the father of a daughter, Beverly Ann Mund, born on March 30, 1951.

Six months after their marriage, on July 17, 1951, while the defendant was located outside the state in the armed services, the plaintiff commenced an action for divorce. At that time the plaintiff was 19 years of age and the defendant was 21 years of age. The plaintiff appeared by her father, who was duly appointed as guardian ad litem. The complaint contains this equivocal allegation: 'That there are no living issue of said marriage except that plaintiff has one child in her custody.' The parties entered into a stipulation by which the defendant submitted to the jurisdiction of the court and agreed that, if grounds for divorce were established, such divorce should be granted without provision for alimony or support. The stipulation contains no mention as to issue of the marriage. No answer was interposed by the defendant. The case was heard as a default action, and, statutory grounds for divorce having been found to exist, the divorce was granted on July 21, 1951. The findings of fact in that action state: '* * * there are no living issue of said marriage.' It is difficult to understand why no mention was made of the child as issue in the verified complaint or stipulation, particularly in view of the fact that the plaintiff must have been obviously pregnant when she was married and the child was living at the time the divorce was granted.

On April 12, 1957, about 6 years after the birth of the child, the plaintiff filed a petition to amend the findings so as to establish that one child was born of the marriage. The petition further asked for the allowance of reasonable support for the child. The plaintiff's petition was accompanied by her affidavit stating that at the time the order was made granting the divorce she was unaware that it included a finding that there was no issue of the marriage. The plaintiff further affirmed that during the course of the trial neither the judge nor her attorney asked her whether there was any issue of the marriage. In addition to her affidavit, the plaintiff submitted the child's birth certificate, showing the parties to be the parents of the child and the birth as having occurred during wedlock.

The trial court amended the findings, in accordance with the petition, to show that Beverly Ann Mund was a child born of the marriage of the parties and that the plaintiff was entitled to custody and the sum of $40 per month support for the child.

1. The first point raised by the defendant is that the district court did not have power to amend the findings of fact and judgment for the reason that M.S.A. 1949, § 544.32, limited the power of the district court to amend for a mistake to one year after entry of judgment. The statute in question, which has been superseded by Rule 60.02, Rules of Civil Procedure, did not prohibit the amendment of a divorce decree as to support or custody of children but only prevents modification with respect to the marital status of the parties. Hoff v. Hoff, 133 Minn. 86, 157 N.W. 999.

2--3. The district court is given broad power to modify a judgment of divorce by M.S.A. § 518.18, which provides that the court may revise and alter an order concerning the care, custody, and maintenance of children and make new orders concerning them as circumstances of the parents and the interests of the children may require. Johnson v. Johnson, 223 Minn. 420, 27 N.w.2d 289; Limnell v. Limnell, 176 Minn. 393, 223 N.W. 609. We have recognized that the obligation of parents to support their children derives from the legal and natural duty as members of society to take care of them until they are old enough to take care of themselves. McAllen v. McAllen,97 Minn. 76, 106 N.W. 100; Buckminster v. Buckminster, 38 Vt. 248, 88 Am.Dec. 652.

4. Where no allowance has been made for the support of a minor child, the power of the court extends to subsequent modification and amendment of the decree so as to secure the full performance by the parent of his legal and natural duty to care for his offspring. This obligation to support the issue of the marriage is exactly the same after the divorce as it was before the dissolution of the marriage. Quist v. Quist, 207 Minn. 257, 290 N.W. 561; 27 C.J.S. Divorce § 319 b. Since parents may not absolve themselves of the obligation to support their offspring by a court-adopted stipulation, we conclude that, where the parents or their counsel, either through error or design, by stipulation or evidence presented in a divorce action omit mention of the fact of issue of the marriage and fail to make provision for such issue, the court under its continuing jurisdiction to modify, alter, or amend the divorce decree may correct the error and provide for the support of a child omitted in the original order.

5. The defendant contends that, because the stipulation entered into between the parties provides that there shall be no alimony or support, the plaintiff is barred from asserting this claim. We have no hesitancy in saying that, even though a stipulation may be incorporated in the divorce decree, that fact does not affect the power of the court to make...