Simms v. Simms

• Citation: 49 Haw. 200,412 P.2d 638
• Decision Date: 31 March 1966
• Docket Number: Nos. 4439,4453,s. 4439
• Parties: Carmelita G. SIMMS, by her Prochein Ami, Robert Won Bae Chang, and Nohealani C. Simms, a Minor, by her Prochein Ami, Robert Won Bae Chang, v. Harry A. SIMMS.
• Court: Hawaii Supreme Court

Page 638

412 P.2d 638

49 Haw. 200

Carmelita G. SIMMS, by her Prochein Ami, Robert Won Bae

Chang, and Nohealani C. Simms, a Minor, by her

Prochein Ami, Robert Won Bae Chang, v. Harry A. SIMMS.

Nos. 4439, 4453.

Supreme Court of Hawai'i.

March 31, 1966.

Syllabus by the Court

1. The words 'maintenance' and 'support' with respect to the duty of a husband to support a wife are usually synonymous.

2. The word 'separate' used in connection with 'maintenance' indicates that it has to do with the right of the wife to be

maintained by her husband while living apart from him.

3. Any living allowance which might be granted in an equitable action to a wife who is living apart from her husband would constitute 'separate maintenance' and the decree providing for such an allowance would establish the condition which under the provisions of R.L.H.1955, § 324-81 (now incorporated in § 324-20) would permit either party to the action to subsequently apply for and to obtain a divorce in the event he or she could establish that the parties had continued to live separate and apart for two years, that no reconciliation had been effected and that their living together was insupportable.

4. Under proper circumstances an equitable action may be maintained by a minor child to enforce its right to support by the father.

5. R.L.H.1955, § 215-25, providing that the division of Domestic Relations of the First Circuit Court shall have jurisdiction of separate maintenance actions except for such cases as are especially assigned to another judge does not oust jurisdiction of the other judges of the First Circuit Court to hear and determine such an action-the lack of any special assignment in a separate maintenance case tried by a judge of the First Circuit Court other than the judge assigned to the division of Domestic Relations is a procedural irregularity which is waived if not seasonably raised.

Robert Won Bae Chang, Honolulu (Hoddick, Rothwell & Chang, Honolulu, of counsel), for Carmelita G. Simms, plaintiff-appellant in No. 4439, and Nohealani C. Simms, plaintiff-appellee in No. 4453.

Samuel Landau, Honolulu, for Harry A. Simms, defendant-appellee in No. 4439, appellant in No. 4453.

Before CASSIDY, ^* WIRTZ, LEWIS and MIZUHA, JJ., and Circuit Judge KING assigned by reason of vacancy.

PER CURIAM.

On May 7, 1964, Plaintiffs Carmelita G. Simms and Nohealani C. Simms, wife and daughter respectively of Defendant Harry A. Simms, filed a joint complaint against him praying for a judgment which would compel him to provide a reasonable sum each month for the support of the wife and a reasonable sum each month for the support of the child. The basis for the relief sought rests on the bare allegation, 'That for sometime now Defendant has not provided proper and adequate support to both Plaintiffs as required by law, and Defendant is well able to provide such support,' and the averment that the plaintiffs had no adequate remedy at law.

The complaint was accompanied by an application for support pendente lite and an order to show cause why such temporary support should not be granted was issued.

On May 18, 1964, defendant filed his answer to the complaint asserting inter alia that it failed to state a cause of action upon which relief could be granted, and further, that the court lacked jurisdiction to grant the relief sought or to act pendente lite in the cause.

It can be inferred from the record that the complaint was deliberately framed so as not to present the ordinary equitable action for what is commonly termed 'separate maintenance' in this jurisdiction. It is clear from the proceedings below as well as from what has been argued and presented in this court that plaintiff's basic contention was and is that, in equity, there is a distinction between 'support' and 'separate maintenance' and that the wife was seeking the former and did not at all desire the latter. It is conceded that the reason for making the claimed distinction in the remedy sought was for the intended purpose of avoiding the consequences that could follow from the provisions of R.L.H.1955 § 324-81, ¹ if she obtained a 'separate maintenance' decree. The firm representation was made by counsel on the wife's behalf that notwithstanding the defendant's attitude towards her and his abandonment of the home, as is hereinafter related, she was ready to take him back and in no event desired to permit her marriage to be dissolved by divorce as under the statute it might later be if an ordinary decree for separate maintenance were entered in her favor.

The order to show cause came on for hearing on May 21, 1964. The evidence adduced showed that the defendant had left his wife and child on April 1, 1963, that he unsuccessfully endeavored to obtain a divorce and that after the dismissal of his divorce libel he refused or neglected to furnish funds for the support of his wife and child and that he notified utility companies and many others who had customarily furnished necessities for the household and the family that he would not be responsible for anything they furnished or sold to his wife.

The wife testified defendant left the home 'of his own accord' and being asked if she knew why, replied 'Yes. He's having an affair with another woman.' She offered in evidence a letter from the defendant dated May 4, 1964, in which he stated in part, 'Since I have been living away from you for over thirteen months now and most definitely do not intend to return or live with you ever again, it would appear to the best interests of all, for you to make some kind of a reasonable offer of settlement, rather than to continue with all this hate and bickering which now exists, and which can only increase the longer this impossible situation is allowed to exist.'

The wife also testified she had said nothing to defendant to cause him to leave home and that she would permit him to return home and live as her husband if he desired to do so. No attempt was made to amplify on the circumstances attending the separation. The wife's case was presented on the theory that it was not material whose responsibility it was that the husband had left the home. In fact her counsel objected to the defendant's testifying that her drinking was one of the reasons why he left the home. The wife's counsel urged below that her suit could be sustained simply by showing that the husband would not support her 'without getting into the normal grounds for issuing a decree for separate maintenance.'

The defendant was called as an adverse witness and was questioned respecting his earnings and income. It was also brought out from him that he had no intention of ever returning to live with his wife and that unless ordered to do so he would not provide for her support excepting that he was willing to and intended to continue to pay the monthly installment of $118.00 payable on the mortgage covering the jointly-owned home in which the wife and child were living and also that he would pay the insurance on a car owned by the parties.

While the hearing on the order to show cause started out as a proceeding to determine the allowance of temporary support for the wife and the child, at an early stage in the proceeding the defendant injected the question of and objection to the court's power to grant relief on the theory advanced for plaintiffs and of the nature sought by them. Ruling was reserved on the question and the hearing on the order to show cause continued. After the taking of evidence was concluded and the court had considered memoranda submitted by the parties on the question so raised, the court made a ruling denying the wife relief. In a combined decision and order the court stated in respect to her case:

'What Mrs. Simms is endeavoring to do in this case is to obtain a decree providing for her support by an action that she says is separate and distinct from an action for separate maintenance. Her reason for approaching the matter in this way is to avoid the failure to reconcile statute, Sec. 324-81, R.L.H.1955. The flaw in her reasoning lies in the fact that there is no difference between an equitable action for support and an equitable action for separate maintenance. They are different labels for the same thing and are authorized by Dole v. Gear, 14 Hawaii 554.

'Further the failure to reconcile statute (Sec. 324-81, R.L.H.1955) in my judgment applies to both, for an action sounding in equity for support is the same thing as a bill in equity for separate maintenance.

'Since Mrs. Simms does not want the present action treated as an action for separate maintenance (which it is), there is no basis for ordering temporary support.'

The lower court's ruling was tantamount to dismissal of the complaint as to the wife. The parties have considered it as such and this court will do likewise. The wife has appealed and her appeal is pending as No. 4439.

The lower court considered the child's right to relief as presenting a different problem. Citing 39 Am.Jur., Parent and Child, § 45, the court stated that it agreed with those jurisdictions which hold that a child may bring an equitable action against the father for support, and ordered that the defendant pay $350.00 a month for the support of his child with a proviso that if he continued to pay the monthly amounts due on the mortgage on the family home the monthly support payments would be reduced by $59.00. The defendant has appealed from this support order. His appeal is docketed as No. 4453.

On the posture of the case as it was presented and submitted below we think the trial court was correct in denying the wife relief.

Dole v. Gear, 14 Haw. 554, decided in 1903, is the controlling authority in this jurisdiction for granting equitable relief to an abandoned and neglected wife. The primary question presented in that case is stated in the court's opinion to be: 'Has equity jurisdiction to grant permanent alimony or maintenance independently of proceedings for...