Schneider v. Schneider

• Decision Date: 13 March 1944
• Docket Number: No. 8568.,8568.
• Citation: 141 F.2d 542,78 US App. DC 383
• Parties: SCHNEIDER v. SCHNEIDER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

78 US App. DC 383, 141 F.2d 542 (1944)

SCHNEIDER v. SCHNEIDER.

No. 8568.

United States Court of Appeals District of Columbia.

Argued February 14, 1944.

Decided March 13, 1944.

Mr. Edmund D. Campbell, of Washington, D. C., for appellant.

Mr. Arthur G. Lambert, of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and EDGERTON and ARNOLD, Associate Justices.

ARNOLD, Associate Justice.

Appellant is the divorced wife of the appellee. They have one son. She brings this action (1) on her own behalf, to compel appellee to reimburse her for money expended for support of their son within the past four and one-half years, and (2) as next friend of the son, to require appellee to provide for his future support. The court below entered a summary judgment denying all relief, from which this appeal is taken.

The record discloses that the father is a resident of and domiciled in the District of Columbia. The mother resides in a Maryland suburb of the District. Prior to the divorce both parties lived in the District of Columbia as husband and wife. In 1938 they entered into a collusive written agreement providing that the mother should go to Reno, Nevada, to obtain a divorce, the entire cost of which was to be borne by the father. The agreement further provided that the father was to furnish "clothing and all other necessaries for his son, including medical care, educational expenses and traveling outlays, the only exception being that when their said son is with his mother the latter shall provide him food".

Pursuant to this agreement the mother obtained a divorce in Reno, Nevada, in August, 1938. The Nevada decree, in addition to alimony, contained a provision that the mother should have custody of the son and receive $50 a month for his support. The mother's attorney in the Nevada divorce suit was selected and paid by the father. Prior to the divorce he was directed by the father's attorney in Washington to "let the decree provide $50.00 a month for the support of the child." The letter continued "There will be no difficulty about this but I will suggest to Mrs. Schneider (the appellant) to keep an accurate account of her disbursements on the son's account. I think that you now have all necessary data so that you may push the matter to a conclusion". It is apparent from this record that the provision of $50 a month for the son's support was inserted in the Nevada decree as a result of the father's representation that he would repay the mother for the additional expenditures for necessaries described in their collusive agreement. There is nothing to indicate the inadequate provision of $50 a month for the son's support was determined by the Nevada court on its merits. The record shows that the father is worth over a million dollars.

For a period of four and one-half years the mother has spent the sum of $1,712.49 for clothing, education and travel for the son in addition to the $50 a month provided by the decree, and has kept an account of her expenditures as suggested by the father during the divorce proceedings.

The motion for summary judgment on this record raises the question whether a father, by instigating and abetting a collusive divorce decree in a foreign jurisdiction, can escape the obligation for adequate support of his son imposed on him by the law of his domicile. The mere statement of the question gives us the answer.

Conceding the presumption that the Nevada court had jurisdiction to grant the mother a divorce, in spite of the apparent improbability of bona fide domicile,¹ it is nevertheless clear that court had no jurisdiction over the obligation of the father to support his son. The domicile of the father was in the District of Columbia. The domicile of the son was that of the father and could not be changed by the voluntary act of the son even if he had accompanied his mother to Nevada.² The father's voluntary appearance in the Nevada court did not give that court jurisdiction to determine his obligation for support because neither the father nor the son had a Nevada domicile.³

For these reasons the duty imposed by the law of the District of Columbia on the father to provide adequate support for his son still exists in spite of the Nevada decree. The measure of that duty is the present need of the son and the ability of the father to provide for it. The sum of $50 a month is not adequate for the care and education of a son of eighteen under the circumstances disclosed by the record. It is, therefore, the duty of the court in the District of Columbia to compel the father to provide adequate support under its general equity powers.

A suit by the mother as next friend is a proper proceeding to enforce the rights of the son. We are aware of the fact that some decisions in other jurisdictions give the child no rights to enforce the duty of support either by an action in his own name or by a proceeding in the name of a next friend.⁴ We believe, however, that these cases are contrary to the established principle that where a duty exists equity will provide a remedy for its violation. In the case of Wedderburn v. Wedderburn⁵ we upheld an action, brought by a mother as next friend, for support of the child against a divorced father. The case of Rapeer v. Colpoys⁶ relied on by appellee does not affect the general equity powers of the courts in the District of Columbia to enforce the duty of support. It holds only that a decree against a divorced parent for support cannot be enforced by imprisonment for contempt under our Code.⁷

In addition to the mother's cause of action as next friend to enforce the duty of future support, she sues in her own name for $1,712.49, which she paid on account of past support at the suggestion of the father. The father's sole defense to this cause of action is that it is based on a void collusive agreement to obtain a divorce. We find no merit in that defense. The duty of support exists entirely apart from the collusive agreement. The mother's cause of action is based, not on the agreement, but on the...