Parks v. Parks

• Decision Date: 19 May 1925
• Parties: PARKS v. PARKS.
• Court: Kentucky Court of Appeals

272 S.W. 419

209 Ky. 127

PARKS v. PARKS.

Court of Appeals of Kentucky.

May 19, 1925

Appeal from Circuit Court, Boyle County.

Action by Margaret Parks (now Crooker) against Huston Parks. From a judgment of dismissal plaintiff appeals. Reversed and remanded.

Emmett Puryear, of Danville, for appellant.

C. C Bagby and Henry Jackson, both of Danville, for appellee.

McCANDLESS J.

In a divorce proceeding between Margaret and Huston Parks in the Boyle circuit court in the year 1910, the wife was awarded a divorce and the custody of their infant son, Leon, and alimony at the rate of $20 per month so long as she remained unmarried; no reference being made in the judgment to maintenance.

The parties were young, and had but little, if any, property though the parents of each appear to have been in comfortable circumstances. Since that time the mother, with the aid of her father, has supported and cared for Leon, and paid for his education.

The husband has moved to Oklahoma and married again, and, it appears, is fairly prosperous, but has never contributed anything toward his son's support.

In August, 1920, Margaret Parks, who has since remarried, filed this action in equity in the Boyle circuit court, seeking to recover from Huston Parks certain sums which she had paid out in the maintenance and education of Leon, "and for an order and judgment making proper provision for the future support, maintenance, and education of said Leon Parks," and concluding with a prayer for general relief.

A demurrer to the petition was overruled. Defendant answered traversing the items of expenditure claimed, pleading the judgment in the divorce case as res judicata, and relying on the five-year statute of limitations.

The case was referred to the master commissioner, who on proof heard reported the reasonable expenditures paid by plaintiff for the support and maintenance and education of Leon during the five years preceding the filing of the action to be the sum of $600 annually.

On final hearing the court reached the conclusion that the judgment in the divorce case was a bar to the action, and dismissed the petition. Plaintiff appeals.

In holding that the original judgment was res judicata as to future allowances for maintenance, the lower court was clearly in error. Parents are under a natural obligation to support and maintain their children, and primarily this duty falls upon the father. Ragsdale v. Com., 195 Ky. 750, 243 S.W. 1056; Com. v. Donovan, 187 Ky. 779, 220 S.W. 1081. True, the petition in the divorce case sought both custody and maintenance, and the judgment was silent as to the latter, but it must not be overlooked that maintenance is for the child and not for the mother.

If the judgment is construed as determining the rights of the parties litigant only, and as leaving to the father's discretion the manner in which he will discharge his natural obligations to his child, it is clear that the doctrine of res judicata does not apply to a proceeding for future allowances. On the other hand, if the silence of the judgment on the subject is to be construed as ignoring the child's claims upon the father and as placing the burden of maintenance upon the mother alone, it must be upon the assumption that she has sufficient means for that purpose, or that, as she is given and the father denied the services and companionship of the child, he should be relieved of his parental obligation.

If we assume the latter alternative, and further assume that this would preclude the mother from recovering expenditures made by her on the child's behalf (a question considered infra), nevertheless a proceeding for future allowances could be had under section 2123, Ky. Statutes, which provides:

"Pending an application for divorce, or on final judgment, the court may make orders for the care, custody and maintenance of the minor children of the parties, or children of unsound mind, or any of them, at any time afterward, upon the petition of either parent, revise and alter the same, having in all such cases of care and custody the interest and welfare of the children principally in view. * * *"

The court granting the divorce is thus given jurisdiction to revise or alter orders of custody and maintenance to conform to the infant's necessities as they arise and to any change in the financial condition of the parents; this to be done on the petition of either parent.

No distinction is drawn between orders granting or refusing maintenance, or such as are silent on the question; hence, if this question was considered and determined in the original action, the case falls within the purview of the statute, and the judgment or order may be altered or revised in this respect as therein prescribed.

In such cases it is proper practice to retain the case on the docket for the purposes indicated and to enforce such orders. Day v. Day, 168 Ky. 68, 181 S.W. 937; Griffin v. Griffin, 173 Ky. 636, 191 S.W. 458; Davis v. C. N. O. & T. P. Ry. Co., 172 Ky. 55, 188 S.W. 1061, Ann.Cas. 1918E, 414. And the court granting the divorce alone has jurisdiction to revise it. McNees v. McNees, 97 Ky. 152, 30 S.W. 207, 17 Ky. Law Rep. 25.

The original judgment in this case directed the action to remain on the docket for future orders, but this does not appear to have been done. No doubt that case could have been reinstated and a supplemental petition filed asking for future maintenance. That practice was not followed here, but a direct action was brought in the same court, and all the facts recited, and it could have been consolidated with the former suit and the same proceedings had as if filed therein. The statute does not indicate the form of practice, and we do not think this material. It follows that the petition stated a cause of action for future allowances, and the court erred in sustaining the demurrer and dismissing it.

2. The judgment being silent as to maintenance, may the mother recover for past expenditures for the child's maintenance and education? This is a question that has not heretofore been presented to this court, but which has frequently arisen in other jurisdictions, and upon which there is a sharp conflict of authority; some of the decisions turning upon the particular facts of the case presented; others upon the construction of the acts involved; while a large number have been decided without reference to a statute.

In favor of the rule of res judicata it is urged that the awarding of the custody of the children to their mother deprives the father of their services, and that support and service are in such cases reciprocal; that, when the father is denied the custody of the children, his common-law obligation is at an end, and thereafter his duties are purely statutory; that it will be presumed that all necessary orders for the maintenance of the children are embodied in the decree which is conclusive as to the obligation of the husband, unless modified in proceedings had in the original action. Among the leading cases adopting this view are Hall v. Green, 87 Me. 122, 32 A. 796, 47 Am.St.Rep. 314; Brow v. Brightman, 136 Mass. 187; Brown v. Smith, 19 R.I. 319, 33 A. 466, 30 L.R.A. 680; Ramsey v. Ramsey, 121 Ind. 215, 23 N.E. 69, 6 L.R.A. 682; Cushman v. Hassler, 82 Iowa 295, 47 N.W. 1036.

On the other hand, it is contended with equal force that, if a divorce is granted for the father's...