Plaster v. Plaster
| Decision Date | 31 January 1868 |
| Citation | 47 Ill. 290,1868 WL 4980 |
| Parties | LOUISA PLASTERv.JEPTHA PLASTER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Cass county; the Hon. CHARLES TURNER, Judge, presiding.
The facts of this case will sufficiently appear from the opinion of the court.
Mr. MURRAY MCCONNEL, for the plaintiff in error.
Mr. HENRY E. DUMMER, for the defendant in error.
Mr. JUSTICE WALKER delivered the opinion of the Court: In this case, it appears that at the November term, 1854, a divorce was decreed upon the ground of desertion of defendant in error. There was one child, the fruits of the marriage, then three years of age, whose custody was decreed to plaintiff in error, until the further order of the court. It appears from the report of the master, that defendant was, at that time, worth one thousand dollars, one-fourth of which was decreed to plaintiff in error as her absolute property, and as alimony, and the case passed from the docket.
At the March term, 1866, after notice was given, a motion was made to re-docket the case, and the supplemental petition was filed. At the September term, 1866, the case was re-docketed, and a demurrer to the petition was filed, which was sustained by the court. No further steps were taken in that court, until the September term of the court, when a decree nunc pro tunc, as of the September term, 1866, was rendered, dismissing the petition. The case is brought to this court, and various errors are assigned for its reversal.
The petition claimed pay for the support and education of the child for the time intervening the decree granting the divorce and the filing of the petition; a decree for his future support and education, and a decree for further alimony. It is insisted that the court below should have retained the petition and granted the relief sought. Nature has implanted in all men a love for their offspring that is seldom so weak as to require the promptings of the law, to compel them to discharge the duty of shielding and protecting them from injury, suffering and want, to the extent of their ability. Hence the courts are seldom called upon to enforce the duty of parents. The law of nature, the usages of society, as well as the laws of all civilized countries, impose the duty upon the parent of the support, nurture and education of children. This duty devolves first upon the father, and next upon the mother, so long as they are of tender years and unable to provide for themselves. While this liability is not controverted, as a general rule, it is insisted that by the decree of the court giving the custody of the child, in this case to the mother, absolved defendant in error from his further support and nurture. We are unable to appreciate the force of the objection. It was his neglect of duty, by deserting his wife and child, and failure to contribute to their support, that produced the divorce, and warranted the court in giving the custody of the child to the mother. And we are not able to see that because he had so conducted himself, and neglected his duty in failing to support his wife and child, that he thereby became released from its further and future support. His being adjudged by the court to be unfitted to have the custody, care and education of the child, did not, nor could it, release him from both his natural and legal duty.
The decree only directs that the mother shall have the custody of the child until the further order of the court. It does not find that the mother shall support the child, nor does it release defendant in error from the obligation; it leaves that duty subsisting and unimpaired. Had the court found both parents improper persons to have his custody, and had placed him in the care of another person, no one would have supposed that defendant in error would not have remained liable, and in what does the difference consist? After the parents were divorced, all duties and obligations to each other ceased, and they were as strangers to each other. Pl...
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