Smith v. Smith
| Decision Date | 20 March 1957 |
| Docket Number | No. 7547,7547 |
| Parties | Hazel M. SMITH, Plaintiff-Appellant, v. Raymond Carl SMITH, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
R. P. Smith, Cape Girardeau, for plaintiff-appellant.
A. M. Spradling, Jr., Strom & Spradling, Cape Girardeau, for defendant-respondent.
The court below sustained husband-defendant's motions to dismiss both counts of the wife-plaintiff's petition because of failure to state a claim upon which relief can be granted. Count I of the petition charged defendant without cause abandoned the plaintiff and did not thereafter contribute anything for her support and maintenance, by reason of which plaintiff was required to work and to expend her own funds for the necessities of life. The prayer was for recovery of money judgment in the sum of $1,875, the reasonable value and cost of such unprovided necessities so furnished by plaintiff. The question raised by the dismissal of Count I is: Does an abandoned wife have a cause of action against her husband to recover money expended by her in procuring necessities for her support and maintenance?
A husband is obliged by the common law to support his wife and minor children in accordance with his means, and this duty to supply necessities to the wife continues after a separation if such separation be the fault of the husband. Spencer, Law of Domestic Relations, ch. X, Sec. 121, p. 111; 41 C.J.S., Husband and Wife, Sec. 52, p. 516; Pfenninger v. Brevard, Mo.App., 129 S.W.2d 924; Schulz v. Great Atlantic & Pacific Tea Co., 331 Mo. 616, 56 S.W.2d 126; see Dorrance v. Dorrance, 257 Mo. 317, 165 S.W. 783. And in the event the husband does not supply such necessities, one who has furnished them (except as a gratuity) may sue and recover the value thereof from the husband. Bishop on Marriage, Divorce and Separation, vol. 1, Sec. 1215, p. 524; Spencer, Law of Domestic Relations, Sec. 121, p. 111; Audrain County v. Muir, 297 Mo. 499, 249 S.W. 383; Pfenninger v. Brevard, supra, 129 S.W.2d 924. The weight of authority is that the primary duty to support rests on the husband (where the separation was the fault of the husband and not the fault of the wife), although the wife may have a separate estate of her own from which necessities may be supplied, or may be able to support herself. Actual dependency of the wife is not required to sustain the legal liability to support. 26 Am.Jur., Husband and Wife, Sec. 360, p. 959; see 41 C.J.S., Husband and Wife, Sec. 50a, p. 510, Sec. 52c, p. 519; annotation 101 A.L.R. p. 442. The Missouri decisions are to the same effect. Cotter v. Valentine Coal Co., 222 Mo.App. 1138, 14 S.W.2d 660; State ex rel. Valentine Coal Co. v. Trimble, 325 Mo. 277, 28 S.W.2d 1028; Caldwell v. J. A. Kreis & Sons, 227 Mo.App. 120, 50 S.W.2d 725; In re Hutcherson's Guardianship Estate, 239 Mo.App. 801, 199 S.W.2d 899; Reynolds v. Rice, 224 Mo.App. 972, 27 S.W.2d 1059; State ex rel. George v. Mitchell, Mo.App., 230 S.W.2d 116, 120(7); Boldwin v. Fowler, Mo.App., 217 S.W. 637, 638. Nor must the wife be without funds or property in order to successfully maintain a statutory action for separate maintenance. Woodman v. Woodman, Mo.App., 281 S.W.2d 555; Dietrich v. Dietrich, Mo.App., 209 S.W.2d 540, 545. This rule is not changed by the married women's acts. 26 Am.Jur., Husband and Wife, Sec. 360, p. 959; In re Wood's Estate, 288 Mo. 588, 232 S.W. 671; Pfenninger v. Brevard, supra, 129 S.W.2d 924.
Under the English common law it was recognized that the obligation existed, but the wife, because of her disability, could not enforce it (although it was sometimes done vicariously); but since the married women's acts, which removed the disabilities of the wife, the weight of authority is that she may now maintain the action. Restatement, Restitution, Sec. 76, illustration 5, p. 334; Madden on Domestic Relations, ch. 5, Secs. 58-60; see 117 A.L.R. 1181; see 26 Am.Jur., Husband and Wife, Sec. 343, p. 942; De Brauwere v. De Brauwere, 203 N.Y. 460, 96 N.E. 722, 38 L.R.A.,N.S., 508; Spalding v. Spalding, 361 Ill. 387, 198 N.E. 136, 631, 101 A.L.R. 433, 437; Bohun v. Kinasz, 124 Conn. 543, 200 A. 1015; Cantiello v. Cantiello, 136 Conn. 685, 74 A.2d 199; Gessler v. Gessler, 181 Pa.Super. 357, 124 A.2d 502; Adler v. Adler, 171 Pa.Super. 508, 90 A.2d 389; see Sodowsky v. Sodowsky, 51 Okl. 689, 152 P. 390. The leading and most often cited case is De Brauwere v. De Brauwere, supra, 203 N.Y. 460, 96 N.E. 723, 38 L.R.A.,N.S., 512, wherein the court, after discussing the theory of subrogation of the wife to the rights of third persons who furnished the necessaries, stated:
In Adler v. Adler, supra, 90 A.2d loc. cit. 390, the court said:
'Where, as here, a deserted wife has used or applied her own separate estate in the discharge of an obligation resting primarily on the husband, the law imposes a quasi contractual relationship to reimburse the deserted wife for expenditures which she had expended from her separate estate in providing herself with support in a manner in keeping with his financial circumstances and earning power.'- We find no case in Missouri which directly passes upon this question. 1 However, in In re Hutcherson's Guardianship Estate, supra, 199 S.W.2d 899, the then guardian of an insane woman was permitted to surcharge the settlement of her husband and ex-guardian, who had charged expenses for her support in an asylum against the wife's separate estate.
Our statute, Sec. 452.130, which provides for an action for separate maintenance, is not antagonistic to the right of the abandoned wife to secure reimbursement for her support, but is a legislative adoption or recognition of the equity jurisdiction of the court to award the wife separate maintenance out of her husband's estate. Behrle v. Behrle, 120 Mo.App. 677, 97 S.W. 1005, 1006; Hoynes v. Hoynes, Mo.App., 218 S.W.2d 823, 827; Meredith v. Meredith, Mo.App., 151 S.W.2d 536.
Somewhat analogous is the treatment by the courts of the situation where the mother sues the father for reimbursement of expenditures which she has made for the support of the children. It is held that the wife may maintain the action, that the remedy by independent suit and the remedy provided by statute are different and coterminous, the one looking to the future, while the other looks to the past. Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762, 81 A.L.R. 875; Lodahl v. Papenberg, Mo.Sup., 277 S.W.2d 548; Broemmer v. Broemmer, Mo.App., 219 S.W.2d 300, 304; Gallion v. McIntosh, Mo.App., 8 S.W.2d 1076; Davis v. Gould, 234 Mo.App. 42, 131 S.W.2d 360; Berkley v. Berkley, Mo.Sup., 246 S.W.2d 804, 34 A.L.R.2d 1456; see, in respect to alimony, Swenson v. Swenson, Mo.App., 227 S.W.2d 103, 105, 20 A.L.R.2d 1409. In Kelly v. Kelly, supra, 47 S.W.2d 762, the court referred to the contention (which it was claimed had been decided in Laumeier v. Laumeier, 308 Mo. 201, 271 S.W. 481) that the remedy given by statute to make alterations as to alimony and maintenance was preclusive of other remedies touching such matters. After referring to the statutes, the court said, 47 S.W.2d loc. cit. 765:
'The more ancient remedy, however, and one which exists independent of any statute, is the common-law action by which the devorced wife, the same as any other person who has, on the father's neglect or refusal to do so, supported the children, may recover from such father the amount so expended.'
And again at loc. cit. 767:
In Lodahl v. Papenberg, supra, 277 S.W.2d 548, loc. cit. 551, the court said:
'[T]he apparent purpose of the statute is to provide a mode of procedure for obtaining maintenance of the child and for determining in advance the extent of the common-law obligation of the father, as well as to provide the means of enforcing the obligation.'
And again:
'One remedy is a proceeding in the divorce case, by motion or otherwise, to obtain an order providing for future support; and the other is by independent common-law action to recover for the expenses already incurred.'
Now since the disabilities of the wife have been removed, and she can sue her husband (see infra), we see no reason why the wife may not now maintain the action, nor do we see any reason why the statutory action for maintenance in the future would preclude it. This seems to be the conclusion of the majority of authority (see supra). 2
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