Urbach v. Urbach

• Decision Date: 10 November 1937
• Docket Number: 2026
• Citation: 73 P.2d 953,52 Wyo. 207
• Parties: URBACH v. URBACH
• Court: Wyoming Supreme Court

73 P.2d 953

52 Wyo. 207

URBACH v. URBACH

No. 2026

Supreme Court of Wyoming

November 10, 1937

APPEAL from the District Court, Goshen County; SAM M. THOMPSON Judge.

Action by Alvina Urbach, a minor, by her next friend, George Fox against Louis Urbach, a minor for whom J. M. Roushar was appointed Guardian ad litem. From the judgment rendered defendant appeals.

Modified and Affirmed.

For the defendant and appellant, there was a brief and the cause was argued orally by J. M. Roushar of Torrington.

The court erred in overruling the motion to strike the petition from the files for defect of parties. Sec. 89-506, R. S. 1931. Defendant's application for a guardian ad litem could not confer jurisdiction of the subject matter of the action nor of the plaintiff. All proceedings subsequent to the filing of the motion to strike were a nullity. 14 Ency. Pl. & Pr. 1019; 14 R. C. L. 279; Fodor v. Kunie (N. J. E.) 112 A. 598. An insane person has no standing in court without the appointment of a guardian. A minor has no standing in court, unless represented by a guardian or next friend. 25 R. C. L. 767. The court erred in retaining jurisdiction for the determination of the care and custody of the children. No petition for temporary alimony or for custody of the children during the pendency of the action was ever made. Sec. 35-117, formerly known as Section 3932, 1910 C. S. was considered in the case of Madson v. Humane Society, 25 Wyo. 338, but the identical question in this case was not decided there. In the present case, there is no evidence of unfitness of defendant as guardian of the child that would invoke the provisions of Section 35-117, R. S. The language of Section 35-117 negatives the idea that the court may retain jurisdiction of a divorce action for the purpose of disposing of question relating to minor children, after denial of the divorce. Thomas v. Thomas (Ill.) 95 N.E. 345; Keppel v. Keppel (Ga.) 17 S.E. 976; Garrett v. Garrett (Iowa) 87 N.W. 282. The facts in the Garrett case are almost identical with those in the case at bar. See also King v. King (Mo.) 35 L. R. A. (N. S.) 1159; Simon v. Simon, 39 N.Y.S. 573; Davis v. Davis (N. Y.) 36 L. R. A. (N. S.) 1159; 19 C. J. 72, 80. If the decree of the lower court is permitted to stand, it will leave defendant in a most anomalous position. It would be a complete adjudication of the marital rights of the parties in so far as plaintiff is concerned.

For the respondent, there was a brief by Everett Taylor of Torrington, Wyoming, and Glebe and Elliott of Scottsbluff, Nebraska, and oral arguments by Messrs. Taylor and Glebe.

The authorities cited by the appellant do not go to the jurisdiction of the court, but merely hold that it was irregular or erroneous not to have adult representation for the minor. It can be remedied by amendment. 14 R. C. L. 286, 21 C. J. 1128, 1132. Loiden v. Stopp (Ariz.) 192 P. 246; Estate of Cahill (Cal.) 15 P. 364; Hofern v. Davis, 10 Wis. 502; Rima v. Iron Works, 120 N.Y. 133; Padgett v. Smith (Texas) 103 S.W. 942; Haskins v. White, 32 P. 163; Wickersham v. Timmons, 49 Iowa 267; McDonald v. Wier (Mich.) 42 N.W. 1114. A divorce action is conducted in the same manner as other civil actions. Sec. 35-113, R. S. The sufficiency of plaintiff's residence is sustained by the ruling in Duxstad v. Duxstad, 17 Wyo. 411. A residence once established continues until a new one is acquired, and it is admitted that defendant's residence has been in Goshen County since their marriage. 9 R. C. L. 403; Bechtel v. Bechtel (Minn.) 112 N.W. 883; Moore v. Moore (N. C.) 41 S.E. 943. There is a division of authority upon the proposition whether a court after denying a divorce can retain jurisdiction as to the custody of the children. 9 R. C. L. 287. The broad rule seems to be that the courts have power to retain jurisdiction. Horton v. Horton, 75 Ark. 22; Jacobs v. Jacobs, 161 N.W. 525. This court was not called upon to pass upon the exact question of jurisdiction in Madison v. Humane Society, 25 Wyo. 338, cited in defendant's brief, but made certain observations indicating that this court favored the broad view rather than the narrow view. The judgment of the trial court should be affirmed.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

This is an action brought by the plaintiff, a minor, seventeen years of age, against her husband, the defendant, nineteen years of age. Plaintiff alleges that she and her husband are living separate and apart; that there was born to plaintiff and defendant one child, Betty Jane Urbach (born in May, 1936), now living with plaintiff; that defendant has refused to support her or the child, although capable of earning a good living. Certain allegations were made for the purpose of showing a cause for divorce, and she prayed for that remedy, and also for the custody of the child, and its support by the defendant. J. M. Roushar was appointed as guardian ad litem for the defendant. He, thereupon, moved to strike the petition from the files on the ground that plaintiff, as minor, had no capacity to sue. Thereupon an application was made to substitute plaintiff, by George Fox, her next friend, as party plaintiff. This application was granted, and the motion of the defendant overruled.

Thereafter defendant filed a demurrer, made on the same ground as the foregoing motion, and also an answer, admitting that plaintiff and defendant are married, but denying each and every other allegation in the petition. The demurrer was overruled. Plaintiff was refused a divorce, but the court retained the case for the purpose of disposing of the matters in connection with the child; found that defendant is its father, awarded its custody to the mother, and ordered defendant to pay ten dollars per month for its support, and directed the payment of twenty-five dollars as attorney fee. From this judgment the defendant has appealed.

1. It is argued on behalf of the defendant, appellant here, that the wife, being a minor, has no capacity to sue; that the court was without jurisdiction to entertain a suit brought by her, and that this defect could not be cured by thereafter appointing a next friend to prosecute the action on her behalf and by amending the petition accordingly. Defendant relies on Section 89-506, Rev. St. 1931, providing that "the action of an infant must be brought by its guardian or next friend; and when the action is brought by his next friend, the court may dismiss it, if it is not for the benefit of the infant, or substitute the guardian, or any person, as the next friend." Counsel argues that the statute is mandatory in its terms, and cannot be disregarded. The same contention has been made in a good many cases involving the same or a similar statute. Some of the cases have considered the question at length, and have ruled contrary to defendant's contention. Lorden v. Stapp, 21 Ariz. 646, 192 P. 246; Cahill's Estate, 74 Cal. 52, 15 P. 364; Trask v. Placers Co., 26 Idaho 290, 142 P. 1073; Greenman v. Cohee, 61 Ind. 201. The almost universal rule seems to be that while a suit by an infant in his own name is an irregularity, that may be cured by an amendment. 31 C. J. 1132. While the statute cited above reads as though it were mandatory, other sections of the statute cannot be disregarded in determining the point here considered. Section 89-1063 provides that pleadings may be amended in furtherance of justice. Section 89-1064 provides that "the court in every stage of an action must disregard any error or defect in the pleadings or proceedings which does not effect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect." In view of these statutes we do not think that we are called on to disagree with the general rule above stated, and the instant contention must, accordingly, be overruled.

2. Defendant's counsel further contends that when the court refused plaintiff a divorce, its authority ended, and that it could not thereafter make an order in regard to the custody and support of the child. Counsel for the plaintiff, on the other hand, maintain that this is an action in equity; that when in such case the court obtains jurisdiction, it will retain it for the purpose of avoiding more than one suit and that it will do justice between the parties in all matters incident to the suit. However, divorces in England were granted by ecclesiastical courts or by Parliament. We have no such courts here. And it seems to be generally recognized that the power to grant a divorce is not within the general jurisdiction of courts of equity, but that the jurisdiction in such cases is purely statutory. 19 C. J. 22, 24; Dewitt v. Dewitt, 67 Ohio St. 340; Marleau v Marleau, 95 Ohio St. 162; West v. West, 100 Ohio St. 33; Stewart v. Stewart, 20 Ohio Nisi Prius N. S. 273. The great majority of the courts, accordingly, which have had occasion to pass on the question before us, have held that when the statute merely provides that the custody and care of a child may be provided for when a divorce is granted, the power cannot be enlarged by the courts and cannot be exercised in a case in which the divorce is denied. 19 C. J. 342; 9 R. C. L. 473; Keppel v. Keppel, 92 Ga. 506, 17 S.E. 976; Black v. Black, 165 Ga. 243, 140 S.E. 364; Thomas v. Thomas, 250 Ill. 354, 95 N.E. 345, 35 L. R. A. N. S. 1158, Ann. Cas. 1912 B. 344; Porter v. Porter, 190 Iowa 1126, 181 N.W. 393; Oliver v. Oliver, 216 Iowa 57, 248 N.W. 233; Klenk v. Klenk, (Mo. App.) 282 S.W. 153; Walker v. Walker, 140 Miss. 340, 105 So. 753, 42 A. L. R. 1525; Weigel v. Weigel, 60 N.J. Eq. 322, 47 A. 183; Redding v. Redding, (N. J. Ch.) 85 A. 712; Davis v. Davis, 75 N.Y. 221; Simon v. Simon, 159 N.Y. 549, 54...