Spencer v. Spencer
| Decision Date | 05 January 1906 |
| Docket Number | 14,644 - (204) |
| Citation | 105 N.W. 483,97 Minn. 56 |
| Parties | GERTRUDE SPENCER v. HARRY SPENCER |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Ramsey county, Orr, J., denying a motion for a new trial, after a trial and findings in favor of defendant. Reversed.
Support of Children -- Divorce of Parents.
The legal obligation of a father for the support of his minor children is not impaired by a decree of divorce at the suit of his wife for his misconduct, which gives the custody of the children to her, but is silent as to their support. If under such circumstances he refuses or neglects to support them, she may recover from him in an original action a reasonable sum for necessaries furnished by her for their support after such decree. The law implies a promise on his part to pay for such necessaries.
O. H Comfort, for appellant.
Humphrey Barton, for respondent.
This action was brought in the district court of the county of Ramsey, by the divorced wife of the defendant, against him to recover for money paid by her for the support of their minor son and to secure some provision for his future support. The cause was tried by the court without a jury, and judgment ordered for the defendant on the merits as a conclusion of law from the facts found. The plaintiff appealed from an order denying her motion for a new trial.
The complaint alleged that on September 22, 1892, the parties were married; on May 11, 1895, a son was born to them; on August 20, 1895, the defendant deserted and abandoned his wife and child; that on May 14, 1898, the marriage between the parties was dissolved, and the care and custody of their son awarded to the mother by the judgment of the district court of the county of Saguache in the state of Colorado, in an action then pending in which the wife was plaintiff and the husband was defendant; that the plaintiff has supported the son ever since they were abandoned by the defendant, and has necessarily expended for such purpose the reasonable sum of $1,984, which the defendant promised to pay to the plaintiff, but has not. The answer admitted the marriage birth of the son, and that the marriage was dissolved by a decree of divorce, but denied the other allegations of the complaint.
There was very little conflict in the evidence on the trial, except on the issue as to the defendant's alleged express promise to pay for the support of the child. On this issue the trial court found for the defendant, and being of the opinion that, inasmuch as the decree of divorce awarded the custody of the child to the mother and was silent as to his maintenance, the father was not legally bound to support the child; hence the law would not imply a promise on his part to pay for necessaries furnished for the child. This presents the pivotal question in this case; for, if such be the law, the court was right in denying the plaintiff any relief.
The facts established by the admissions of the parties in the pleadings and on the trial, and by the undisputed evidence, are these: The defendant deserted his wife and child on August 20, 1895, when his child was a little more than three months old; that the defendant has ever since been a resident of Minnesota, and has contributed nothing for the support of his child; that on May 14, 1898, the plaintiff obtained a divorce from him for his misconduct in the state of Colorado, and by the decree the custody of the child was awarded to her, but it was silent as to the maintenance of the child; that from her earnings as a household domestic the plaintiff has supported the child, who for the last three or four years has been afflicted with tuberculosis of one of his hips and is obliged to use crutches; that she came with the child to Minnesota about the beginning of the year 1905, and by her attorney made a demand upon the defendant for payment for supporting the child; and, further, that the defendant never owned any real estate, from which fact it may be inferred that he had no property in the state of Colorado at the time the divorce was granted, as he was then a resident of Minnesota, and presumably had his personal property with him.
The question presented by these facts is whether, under the circumstances stated, the law will imply a promise on the part of the defendant to pay for necessaries furnished to his minor son by his mother. It is well settled that, if a decree of divorce is silent as to the custody of the children, the liability of the father to the divorced mother for the support of the children is the same as his liability to any other person, who furnishes them necessaries for their support. The law in such case will imply a promise on his part to pay for such necessaries, where he has refused or neglected to furnish them. 2 Nelson, Div. & Sep. § 982; 9 Am. & Eng. Enc. (2d Ed.) 871; 14 Cyc. 812. Where, however, the decree of divorce awards the custody of the minor children to the mother, but is silent as to their maintenance, there is a serious conflict of judicial opinion as to the father's liability for their support. A number of the adjudged cases hold that the father is not liable for the support of the children of the marriage, where the decree of divorce has granted their custody to the wife, but contains no provision for their support. 2 Nelson, Div. & Sep. § 983; 9 Am. & Eng. Enc. (2d Ed.) 872. The following cases, with others, support this proposition: Hall v. Green, 87 Me. 122, 32 A. 796, 47 Am. St. Rep. 311; Brow v. Brightman, 136 Mass. 187; Brown v. Smith, 19 R.I. 319, 33 A. 466, 30 L.R.A. 680; Ramsey v. Ramsey, 121 Ind. 215, 23 N.E. 69, 6 L.R.A. 682; Hampton v. Allee, 56 Kan. 461, 43 P. 779; Cushman v. Hassler, 82 Iowa 295, 47 N.W. 1036.
The reason urged in support of this rule is that the awarding of the custody of the children to the mother deprives the father of their services, and that support and service are in such a case reciprocal, and that the mother, to whom the custody of children is awarded, must, unless the decree provides otherwise, support them. This is not a good reason; for, if the divorce is granted for the father's misconduct, it is his wrongful act that deprives him of their services, and not the court, which intervenes for the protection of the children. Another reason urged is that the court, where it has awarded the custody of the children to the mother without expressly providing for their support, is presumed to have made all of the provisions for their support that it was necessary; hence the decree is conclusive as to the obligations of the husband, unless modified in proceedings had in the original action. It would seem, if the court omits to make in its decree any provision for the support of the children, that the presumption would be that the court deemed it best to leave the matter of the support of the children to rest upon the father's legal liability to support them until its...
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