Thorne v. Odom

• Decision Date: 09 September 1977
• Citation: 349 So.2d 1126
• Parties: Buddy Larry THORNE v. Margaret Jo Lollar ODOM. SC 2330.
• Court: Alabama Supreme Court

Page 1126

349 So.2d 1126

Buddy Larry THORNE v. Margaret Jo Lollar ODOM.

SC 2330.

Supreme Court of Alabama.

Sept. 9, 1977.

Harvey S. Jackson, Jr., of Tweedy, Jackson & Beech, Jasper, for appellant.

Hugh D. Farris, Jasper, Charles E. Clark, Birmingham, for appellee.

BEATTY, Justice.

This is an appeal under Rule 5, ARCP from an interlocutory order of the Circuit Court of Walker County which held that by virtue of the desertion of the father, the plaintiff-mother of a deceased child was the proper party under Title 7, § 118, Alabama Code, to bring this action for wrongful death. We reverse and remand with directions.

The plaintiff, Margaret Lollar Odom, filed a complaint on May 5, 1976 under Title 7, § 119, alleging the death of her minor child, Gary Lollar, in an automobile accident on March 3, 1976. She also alleged her previous divorce from Gary's father; the award of custody of their three children, including Gary; the divorce decree which required their father to make "reasonable monthly support payments;" that these had not been made "as so required;" and that their father had not exercised the rights of visitation awarded to him in the divorce decree. Though she did not allege in so many words that the father had deserted his deceased child, the plain intendment of her allegations was to place her within the standing of a mother to maintain an action for wrongful death under Title 7, § 118, Alabama Code, viz.:

A father, or in case of his . . . desertion of his family, . . . the mother may sue for an injury to a minor child, a member of the family.

A jury trial was demanded.

To this complaint the defendant Thorne filed a motion to dismiss alleging three grounds: (1) failure to state a claim upon which relief can be granted; (2) the action was not prosecuted in the name of the real party in interest; (3) the father is the proper party plaintiff. On the hearing of this motion testimonial evidence, depositions and exhibits were introduced, after which the trial court entered an order denying the motion on two grounds: (1) desertion by the father; and (2) the unconstitutionality of Title 7, § 118 by giving a preference to the father over the mother. In this situation, then, we will treat the motion to dismiss as a motion for summary judgment, see Rule 12(b), ARCP.

Initially, we hold that the trial court's order declaring Title 7, § 118 unconstitutional was erroneous. Contrary to his finding, that statute does not give the father the absolute right over the mother to file such an action, but a conditional right as the remainder of our opinion will show. Additionally, we disagree that the statute imposes an arbitrary distinction. Under the Fourteenth Amendment to the United States Constitution, states may treat different classes of people differently when the classification rests upon a fair and substantial relation to the object of the legislation. Montgomery County v. Walsh, 274 Md. 502, 336 A.2d 97 (1975); Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920). The object of § 118 is to provide a right of action for the parent's damages for loss of services, expense of treatment, etc. for the child's injury. Section 119, by the same token, allows a right of action in cases of wrongful death. The classification imposed by § 118 is not arbitrary, because the legislature has recognized that, between the two parents, the father has the primary and continuous duty to support and maintain his minor children reasonably according to his means. Thomason v. Thomason, 53 Ala.App. 206, 298 So.2d 627 (1974); Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1967); Stovall v. Johnson, 17 Ala. 14 (1849). This continuing obligation gives the father the priority in receiving any damages because of the injury or death of the child.

The threshold question is whether the evidence presented to the trial court made a material factual issue of the father's alleged desertion upon which reasonable persons might differ. A summary of the evidence follows:

Gary Clay Lollar, father of the deceased child, testified that he was thirty-two years old, lived in Jasper, and presently employed by Alabama By-Products, Mary Lee No. 1, Gorgas (a coal mine). He and the plaintiff were married at one time and had three children whose ages at the time he and plaintiff were divorced, were five, four and two. Their divorce decree (dated May 22, 1972) was admitted into evidence and disclosed the ground of their divorce to have been incompatibility. It provided for his visitation with the three children at reasonable times and places, and the payment by him to plaintiff of "a reasonable sum of money for the support and maintenance of said children; and if the parties cannot agree on a reasonable sum, the Court retains the jurisdiction to set such. . . ."

According to plaintiff's former husband, he and plaintiff reached an agreement on a reasonable sum (as provided in the decree). He agreed to pay plaintiff fifty dollars every two weeks, and began these payments in 1973, first in cash and thereafter by check. There is evidence of forty-one checks, issued from March 15, 1975 to August 27, 1976, each in the amount of fifty dollars except for five: one for five dollars, two for three dollars, one for fifty-six dollars, and one for fifty-five dollars. At the time of the child's death, Gary was making the fifty-dollar support payments every two weeks for the three children. He also testified that he bought the children's clothes year round, and purchased a TV set for them in 1973. He would visit the children on Friday and when school was out he would take them home with him to spend the night. He visited with the children on Christmas and bought them Christmas and birthday gifts. On the deceased child's last birthday he took him to town, bought him something for his birthday, and got something to eat. After his former wife remarried in 1974 or 1975 he did not visit the children in the plaintiff's home as much because he did not get along with her new husband.

He described some of their early married life, where they lived, his various occupations, their separations, and his continued contributions to the children's support. He described his visits to see the children at the plaintiff's home when they were not available, and his visits to their school and talks with their teachers to determine their school needs. He visited them over thirty times a year, carried them to various places, and had carried groceries to them.

Several witnesses testified on behalf of the plaintiff. Her brother, Richard Jones, stated that after plaintiff and Gary Lollar separated the children needed clothing, most of which they obtained from plaintiff's family. It was his testimony that Lollar did not visit or take care of the children after the divorce, but he did not know whether Lollar visited when he was not at their home.

The plaintiff herself also described their marital past, their moves, their separations and her former husband's contributions to the children's support which, she stated in March or April of 1972 was nothing. The record of her testimony is unclear regarding the sums of money contributed by Lollar and the specific periods of time; however it does establish that when they separated for the last time he was contributing thirty dollars each week for the support of herself and her children, and later reduced that to twenty-five dollars per week because he said he had switched jobs and didn't make as much money. She also stated that he had not paid support for six months at the end of 1972, although he was contributing after she remarried.

She did not know the amount Lollar was making at the mines but that when she asked him about it he said he didn't make any more than he was (had been) making. She did not know of Lollar providing school supplies. She acknowledged his purchase of shoes on an occasion, but he contributed nothing other than the fifty dollars which he had been paying every two weeks for the children since January or February of 1974.

The plaintiff admitted that in a deposition she had given previously her statement that Lollar had agreed, and they had come to an understanding, on a reasonable amount of child support, and that their understanding meant that he would pay a hundred dollars a month. He lived up to it since January, 1974, right up to the time the little boy was killed. She also testified that their agreement for support called for Lollar to pay her one-half of what he made for the support of the children. Her two depositions were introduced into evidence. It will suffice here to state that these, together with her testimony in open court, conflict with regard to the terms of their agreement and the amount of support actually paid or extended by Lollar to the children. As already indicated, the matters of his visitations and attentions...