State of Ill. ex rel. Shannon v. Sterling, 36911

• Decision Date: 30 November 1956
• Docket Number: No. 36911,36911
• Citation: 80 N.W.2d 13,248 Minn. 266
• Parties: STATE of ILLINOIS ex rel. Barbara A. SHANNON, Appellant, v. Kenneth H. STERLING, Respondent.
• Court: Minnesota Supreme Court

Page 13

80 N.W.2d 13

248 Minn. 266

STATE of ILLINOIS ex rel. Barbara A. SHANNON, Appellant, v. Kenneth H. STERLING, Respondent.

No. 36911.

Supreme Court of Minnesota.

Nov. 30, 1956.

Syllabus by the Court

1. The Uniform Reciprocal Enforcement of Support Act by its terms applies to any situation where there is a breach of failure of legal duty to support dependent children located in another state, and the flight of the father or obligor from the initiating jurisdiction, or from the jurisdiction where the legal obligation of support arose, is not a controlling fact.

2. In a proper case the uniform act may be applied not only where the need for two-state action has been created by a roving husband but also where the need arises because of a roving wife.

3. The custody of minor children; the rights of either parent to visit with said children; and the obligation of providing support for such children are governed by the laws of this state where the husband and wife resided when the decree of absolute divorce was obtained.

4. Where the wife, who by decree of divorce has been awarded the custody of minor children subject to the husband's right of reasonable visitation, deprives the husband of his right of visitation by removing the children from the state without the court's approval or without the husband's consent, the husband is relieved from the payments of all unpaid installments of support money which have Theretofore accrued during the period he has been so denied his right of visitation.

5. Although a father, whose right of reasonable visitation under an original divorce decree has been defeated by the act of the wife in wrongfully removing the children from the jurisdiction, is relieved from the payment of support installments which have already accrued, He is not so relieved as to future payments of support if the trial court, in the exercise of a sound discretion, amends the original decree with respect to his right of visitation and so as to permit the wife to reside with the children outside the state.

6. M.S.A. § 518.43 of the uniform act is expressive of a legislative intent that the act is to be construed, not merely as preserving all existing remedies intact, but as providing additional remedies which are supplementary and ancillary to all existing remedies.

7. The Uniform Reciprocal Enforcement of Support Act is within the rule that a uniform law which is remedial in nature is to be liberally construed with reference to the object to be obtained.

8. Under a liberal construction of the uniform act to accomplish its purpose, the county attorney's statutory right of representation reasonably carries with it the authority to apply to the court, by appropriate motion, for a modification of the visitation and custodial provisions of the final decree to the extent necessary to permit an enforcement of the duty of future support.

9. An application by motion of either party under the uniform act reasonably satisfies the provision of § 518.18 which calls for a petition of either parent as a condition for invoking the court's power of modifying the final decree.

The order of the trial court is in part reversed and the case is remanded in accordance with this opinion.

George M. Scott, County Atty., Douglas X. Juneau, Asst. County Atty., Minneapolis, for appellant.

James W. Ronning, Minneapolis, for respondent.

MATSON, Judge.

In a two-state proceeding brought under the Uniform Reciprocal Enforcement of Support Act to compel a divorced Minnesota father to pay for the support of his three minor children who were removed by the mother to Illinois without his consent or approval of court, the initiating petitioner of Illinois, for and in behalf of the children, appeals from an order dismissing the proceeding.

The Uniform Reciprocal Enforcement of Support Act, now in force in all 48 states ¹ in substantially the same form (or the equivalent thereof), was enacted by Minnesota in 1951 ² and is now codified as M.S.A. §§ 518.41 to 518.52. The act, as applied to the relationship of parent and child, was designed for the extension and the better enforcement of the obligations of support, § 518.41, by enabling two states by reciprocal legislation and joint action to cooperate effectively in compelling a parent located in one state to furnish support for his dependent children located in the other state. ³ The two-state action is initiated by or in behalf of the dependent children in the state where they are located and is terminated in the other state (responding state) where the parent owing the duty of support (the obligor) is found.

This proceeding was initiated in Illinois by Barbara A. Shannon for and in behalf of her children, Patrick Sterling, 11 years of age;, Terrance Sterling, 9 years of age; and Annette Sterling, 4 years of age. The defendant father lives in Minnesota.

We have these stipulated facts: The parents were married in Minnesota on July 13, 1942, and the aforesaid minors were born of that marriage. An absolute divorce was granted to the parties on December 18, 1952, by the Hennepin County District Court. The divorce decree required the husband to pay $30 weekly for the support of the children. Custody of the children was granted to the mother Subject to the right of the father to visit said children at reasonable times. The father faithfully paid all weekly support payments up to and including a payment made on July 2, 1955. Since the latter date he has made no support payments. On or about July 1, 1955, the wife, who now appears herein as a petitioner for and in behalf of the minor children, removed the children from Minnesota to Illinois without the consent of the father and without approval of the district court.

The trial court dismissed the proceeding herein on the ground that, since the father had been deprived of his right of visitation by the act of the mother in removing the children from Minnesota to Illinois without the father's consent or approval of court, he was thereby relieved of his obligation to pay for their support. The trial court certifies to this court the following question for determination:

'Where, * * * it is admitted that the petitioner removed minor children of the parties from the State of Minnesota to the State of Illinois without order of court or the consent of the respondent in violation of the terms of a Minnesota divorce decree, can the respondent-father be relieved of his common law obligation to support said minor children under the Uniform Reciprocal Enforcement of Support Act, Section 518.41 to Section 518.53 Minnesota Statutes Annotated, so long as he is deprived of the right of visitation?'

1--2. At the outset it is to be observed that the application of the Uniform Reciprocal Enforcement of Support Act (hereinafter referred to as the uniform act) is not limited to those cases where the father abandons his duty of support by fleeing to another jurisdiction. This is true despite the fact that the immediate occasion which gave rise to the act was the acute need for an inexpensive remedy against a father who deserts and abandons his family and flees to another jurisdiction and thereby, for all practical purposes, escapes his obligation because the wife and children have neither the facilities nor the means to pursue him and institute suit in the state to which he has fled. The provisions of the act, as finally drafted and enacted, were, however, designed to meet the broader need Arising from any neglect or breach of legal duty in providing support for dependent children where the obligor and such dependent children are located in two different states. By its terms the act applies to any situation where there is a breach of legal duty to support dependent children located in another state, and the flight of the father or obligor from the initiating jurisdiction, or from the jurisdiction where the legal obligation of support arose, is not a controlling fact. It follows that, in a proper case, the act may be applied not only where the need for two-state action has been created by a roving husband but also where the need arises because of a roving wife. ⁴ Whether the wife's removal of the children to another state legally justifies the father in discontinuing his support payments is a separate question to be determined under the laws of Minnesota.

In passing upon the husband's liability for support payments during the period he is denied the right of visitation by the wife's unauthorized removal of the children to another jurisdiction, we shall first consider his liability for payments which have already accrued and, secondly, his obligation to make future payments.

3. The custody of minor children; parental visitation rights; and the duty of supporting the children are governed by the laws of this state where the husband and wife resided when the decree of absolute divorce was obtained. In this two-state proceeding to compel support, Minnesota is the responding state. Insofar as here pertinent, § 518.44 provides:

'When the court of a responding state determines to enforce the duties of support owed under the law of this state, the law of this state is declared to be:

'(1) Unless relieved by conduct of the obligee, an obligor present in this state is bound by the duties of support imposed by the laws of this state regardless of the presence or residence of the obligee.' (Italics supplied.)

In compliance with the above section we must ascertain the duties of the support imposed by Minnesota law. Section 518.42 of the uniform act sets forth the following pertinent definitions:

'Subd. 6. 'Law' includes both common and statute law.

'Subd. 7. 'Duty of support' includes a duty of support imposed or imposable by law or any court order, decree, or judgment, whether interlocutory, final, or incidental to a proceeding for divorce, legal or judicial separation, separate maintenance, or otherwise.'

4. The Minnesota law as to the liability of...