Rogers v. Rogers

• Decision Date: 10 October 1914
• Docket Number: 19,022
• Citation: 143 P. 410,93 Kan. 114
• Parties: IDA JANE ROGERS, Appellant, v. RAY VICTOR ROGERS, Appellee
• Court: Kansas Supreme Court

143 P. 410

93 Kan. 114

IDA JANE ROGERS, Appellant, v. RAY VICTOR ROGERS, Appellee

No. 19,022

Supreme Court of Kansas

October 10, 1914

Decided July, 1914.

Appeal from Linn district court; CHARLES E. HULETT, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

MINOR CHILDREN--Abandonment by the Father--Liable to the Mother for Children's Support. A man who abandons his wife and four small children, leaving them destitute in her care, remaining absent in another state and contributing nothing to their support although able to do so, is liable to respond to an action brought by her after she has obtained a divorce to recover her expenses in supporting the children after the abandonment and before the divorce.

James D. Snoddy, of Pleasanton, and Frank J. Merrill, of Paola, for the appellant.

Charles F. Trinkle, and W. B. Cline, both of La Cygne, for the appellee.

OPINION

BENSON, J.

This action is a traveling mate of Rogers v. Rogers, ante p. 108. A judgment was rendered for the defendant on the pleadings.

The petition alleges that the defendant left the plaintiff's home in Linn county on April 18, 1908, for Montana, where he has ever since resided, leaving his four minor children, then ranging from five to nine years of age, in her care without providing any means for their maintenance, support and education, and has since contributed nothing for these purposes, although able to do so; and that the plaintiff maintained and supported the children from the date of such abandonment to the 17th day of April, 1912, at an expense of $ 250 per year, for which she asks judgment.

The answer pleads that the parties were husband and wife during the time between the dates mentioned in the petition; that the plaintiff is the mother of the children; that he never promised or agreed to pay her for supporting them; and that she never demanded such compensation before commencing the action, but assumed the care and custody of the children to the exclusion of the rights of the defendant to their society, and thereby assumed all obligations for their support and maintenance. The answer also pleads a judgment for divorce obtained by the plaintiff against the defendant in the same court on the 17th day of April, 1912, and avers that in her petition in that suit she alleged that she had had the actual custody of the children ever since April 18, 1908, and that she and the children were from that time wholly dependent on her mother for support, and charged the defendant with gross neglect of duty; that the action for divorce was tried on April 17, 1912, and the averments of the petition were found to be true and she was awarded a divorce accordingly and a one-tenth interest in certain lands as alimony.

In her reply the plaintiff alleges an obligation of the defendant to provide for his children; that he had abandoned them and stealthily left the state, leaving them in her care, and had wholly neglected to provide for them; that she had not voluntarily assumed the burden of their maintenance, but the burden had been thrust upon her by his misconduct; that she did not deprive him of the society and comfort of the children nor of any right relating to them.

It will be observed that by setting out the allegation of Mrs. Rogers in the divorce suit that she was compelled to and did obtain support for herself and children from her own mother and the finding of the court that it was true, the defendant sustains the plaintiff's contention that he left his children without means of support, and that she had no means of her own.

The question presented is whether a father who has abandoned his children of tender years, leaving them destitute in the care of their mother, who is without means, is liable to respond to her action, brought after she has obtained a divorce for his fault, to recover the expense of such support furnished by her efforts during the time between the abandonment and the divorce. The statement of the proposition suggests an affirmative answer to a mind moved by the ordinary sense of common justice, but it is contended that the precedents require a negative one. The following decisions of this court, it is said, declare that an action of debt can not be maintained by a mother of minor children against their father for their support unless the father has promised payment. (Harris v. Harris, 5 Kan. 46; Chandler, Adm'r, v. Dye, 37 Kan. 765, 15 P. 925; Miller v. Morrison, 43 Kan. 446, 23 P. 612; Hampton v. Allee, 56 Kan. 461, 43 P. 779.)

All these decisions and others were carefully examined in ...