Riggs v. Riggs

• Decision Date: 07 February 1914
• Docket Number: 18,654
• Citation: 138 P. 628,91 Kan. 593
• Parties: EVA M. RIGGS et al., Appellees, v. JAMES A. RIGGS, Appellant
• Court: Kansas Supreme Court

138 P. 628

91 Kan. 593

EVA M. RIGGS et al., Appellees, v. JAMES A. RIGGS, Appellant

No. 18,654

Supreme Court of Kansas

February 7, 1914

Decided January, 1914

Appeal from Allen district court; OSCAR FOUST, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MINOR CHILDREN--Supported by Divorced Wife--Action to Compel Contribution Thereto from Divorced Husband--Petition Not Demurrable. The defendant deserted his wife and five minor children in Colorado, the state of their residence, and came to Kansas. The proper court of Colorado granted the wife a divorce on the grounds of desertion and extreme cruelty, and awarded her the custody of the children. The defendant's property, worth less than $ 100, was given her as alimony. The decree was based on constructive service and contained no provision relating to the support of the children. Without financial assistance from the defendant the mother of the children, by her manual labor, supported and maintained them sent them to school, and otherwise discharged the duties of a parent toward them. As the older ones grew up and found employment they contributed their earnings towards meeting the family necessities. The mother brought suit against the defendant in Kansas to compel him to contribute to the support of his children by reimbursing her for expenditures she had made for that purpose subsequent to the divorce. The petition was substantially in the form of a pleading in equity and set forth in detail all the facts relating to the situation, circumstances and conduct of the parties. Held, the petition was not demurrable, and on proof of the facts alleged the plaintiff was entitled to an equitable award in her favor.

2. SAME--Former Decisions Approved--Portions of Opinions Disapproved. The decision and the general doctrine of the case of Harris v. Harris, 5 Kan. 46, are approved and followed. The decisions in the cases of Chandler, Adm'r, v. Dye, 37 Kan. 765, 15 P. 925, Miller v. Morrison, 43 Kan. 446, 23 P. 612, and Hampton v. Allee, 56 Kan. 461, 43 P. 779, are approved. Portions of the opinions in the Miller and Hampton cases are disapproved.

F. J. Oyler, of Iola, for the appellant.

Baxter D. McClain, of Iola, for the appellees.

OPINION

BURCH, J.:

The action was one by a divorced wife to compel her former husband to contribute to the support, education and maintenance of their minor children by reimbursing her for expenditures she had made for those purposes subsequent to the decree of divorce.

The parties were married in 1890 in Allen county and afterwards removed to Pueblo, Colo. Six children were born to them. In the year 1909 the defendant, taking the oldest child, a boy, with him, abandoned the remainder of his family and returned to Kansas. On April 18, 1910, the district court of Pueblo county, Colorado, on constructive service, granted the plaintiff a divorce on the grounds of desertion and extreme cruelty. The defendant's property within the jurisdiction of the court, consisting of a frame house, which sold for forty dollars, and the lots on which it stood, which were worth less than twenty-five dollars, were given the plaintiff as alimony. The custody of the five children who were with their mother was awarded to her, but no order respecting their support and maintenance was made. The mother kept the children together, supported them by her manual labor, sent them to school, and fully discharged all the duties of a parent toward them. As they grew up the older ones found work and contributed their earnings toward meeting the family necessities. All this was done without any financial assistance whatever from the defendant.

The plaintiff brought suit against the defendant in Allen county for the purpose stated, the petition being substantially in the form of a pleading in equity which set forth in detail all the facts relating to the situation, circumstances and conduct of the parties. The defendant virtually stood on a demurrer to the petition, which was overruled, the answer merely asserting the conclusive character of the Colorado decree, want of power in the Kansas court to entertain the suit or grant relief, and other legal impediments to recovery. No evidence was offered to controvert the facts alleged in the petition, which were duly supported by the plaintiff's proof. The plaintiff recovered and the defendant appeals.

The court has no hesitation in declaring, according to what it believes to be the weight both of reason and authority, that the plaintiff was entitled to succeed in her action. The subject has engaged the attention of the courts to such an extent in recent times that another judicial opinion added to those vindicating the view just announced would be superfluous. The leading case is Pretzinger v. Pretzinger, 45 Ohio St. 452, 15 N.E. 471, in which all the arguments advanced by the defendant in opposition to the judgment of the district court are refuted. Other cases may be found in 7 A. & E. Ann. Cas. 901; 12 A. & E. Ann. Cas. 137; 14 A. & E. Ann. Cas. 250; 28 A. & E. Ann. Cas. 294; 2 L.R.A. N.S. 851; 8 L.R.A. N.S. 1270. It will be necessary, however, to discuss briefly some of the earlier decisions of this court.

In the case of Harris v. Harris, 5 Kan. 46, decided in 1869, it appeared that a wife obtained a decree of divorce from her husband in January, 1861. She was given the "custody, nurture, education and care" of her three children. A fourth child was born two days after the divorce was granted. Subsequently Harris deeded all his property, consisting of two store buildings and a leasehold interest in the land on which they stood, to his former wife. From the rents of these buildings she supported herself and the children until March, 1866, when the buildings burned. By means of her own labor, keeping boarders, and perhaps aid from others, she continued to support the children for some time, when she brought an ordinary action in debt against her former husband to recover the cost for the preceding three years. The syllabus reads as follows:

"1. The husband and wife were divorced by the district court of Leavenworth county upon her application, and the custody of the three minor children were awarded to her. Two days after the decree a fourth child was born. In an action of debt brought against the father for the entire support and education of all the children by the mother: Held, that she could not recover in such action.

"2. That the only way for relief was by opening the decree as to the children, and making such provision for them as might be just under all the circumstances, or by other proper proceedings under or supplemental to the original decree."

The district court had proceeded upon the theory that the law imposes upon the father absolutely and entirely the obligation to support and educate his minor children and that whoever assumes the duty can hold the father responsible for the value in a suit at law. Mr. Chief Justice Kingman, speaking for the court, disposed of this contention by showing that it can not be left to a stranger, having the society, obedience, and services of a child, to say what is fitting for its care, support and education, advance the money therefor, and in this way conclusively bind the father to respond to an action of debt. A divorced wife to whom children are committed may be wealthy and may occupy a social station which necessitates maintenance of the children in such a way that the father could not by any possibility meet her outlay on their behalf. As between a father who is poor and infirm and a robust, healthy boy the moral obligation of support may be reversed. Because the factors which enter into the solution of the problem of what a father should contribute to the nurture of his children are so numerous and so varied, the court reached the following conclusion:

"Whatever rights she may have under the unfortunate circumstances of the case, can only be obtained by opening the decree in the divorce case, or by proceedings based thereon, in which the court can take into consideration all the facts and circumstances surrounding the parties, and do such full justice as the case requires, having reference to advances already made. In such proceedings equal justice may be done to all parties according to their abilities, and according to the interest of the children, and so as to protect the father from continued and harassing litigation. For if a suit could be maintained of the character of the one before us, a suit could be maintained each day, and the defendant would be powerless. If he offered liberal terms, they might be rejected and be made liable to some other party who might assume the duty of maintaining the child. The suit we indicated as appropriate would make a final as well as a just settlement of the case." (p. 53.)

This is the essence of the decision in the Harris case, which has been greatly misunderstood, and is usually wrongly classified. It did not decide that a divorced wife to whom the custody of children has been awarded may not recover from her former husband for advancements made toward the maintenance of children subsequent to the divorce. On the other hand, the right of the mother and the obligation of the father were expressly recognized, the language being "do such full justice as the case requires, having reference to advancements already made." (p. 53.) Neither was it decided that the remedy lay with the divorce court alone. The particular action of debt which the court had before it was brought in the same court which had granted the divorce and which had personal jurisdiction of the parties. The decision dealt with that situation, and it was held that the suit should have been one of an equitable nature based on or supplemental to...