Wahl v. Walsh, 40207
| Decision Date | 08 December 1956 |
| Docket Number | No. 40207,40207 |
| Citation | 180 Kan. 313,304 P.2d 525 |
| Parties | Gary Theodore WAHL, by Doris Gilbertson Wahl, His Guardian, Appellee, v. Capt. Theodore H. WALSH, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Following Doughty v. Engler, 112 Kan. 583, 211 P. 619, 30 A.L.R. 1065, and Myers v. Anderson, 145 Kan. 775, 67 P.2d 542, it is held, that the father of an illegitimate child too young to care for itself is under a nonstatutory obligation to support it, which may be enforced in an action brought by it through its next friend.
2. When a putative father comes into this state, he becomes amenable to the laws of this state and charged with the support of his child regardless of the presence or residence of the child.
3. Under the circumstances set forth in the preceding paragraph, it is immaterial whether the father is under any duty to support his child under the laws of any other state where the child is present or resides and no question of conflict of laws arises.
4. The record examined in an action by an illegitimate child for support from its putative father, and held, that the trial court did not err in its judgment.
William W. Dimmitt, Jr., Topeka, argued the cause, and Jacob A. Dickinson, David Prager, and Sam A. Crow, Topeka, were with him on the brief for appellant.
Chas. H. Bradbury, Topeka, argued the cause, and Willard B. Rogers, Topeka, was with him on the brief for appellee.
This was an action by an illegitimate minor child for support from its putative father. A judgment was rendered against the father and he appeals.
For present purposes it may be said the petition alleged that plaintiff was a minor aged two years residing in the state of Washington and prosecuted the action by his legally appointed guardian and that the defendant Walsh was his father; that plaintiff had no means to support himself and was too young to work and was in destitute and necessitous circumstances; that defendant, an able bodied man regularly employed by the United States Air Force, refused to contribute to plaintiff's support; that a reasonable amount necessary to support plaintiff was $125 per month or $1,500 per year, and that defendant be ordered to pay that amount into court for his support.
The defendant's demurrer to this petition, and by which he made a general appearance, was overruled and on appeal to this court, the ruling and judgment of the trial court was affirmed. See Wahl v. Walsh, 177 Kan. 176, 277 P.2d 623. Thereafter defendant filed his answer denying generally, admitting the guardianship for the minor and alleging that plaintiff and his mother, who is his guardian, were at all time citizens of the state of Washington and nonresidents of the state of Kansas; that at all times defendant was a resident and citizen of the state of Louisiana and at the time of service of summons upon him he was an officer in the United States Air Force and temporarily based at Forbes Air Force Base in Shawnee County, Kansas; that he had never been a resident or citizen of the state of Kansas and that he was only in Kansas in connection with his air force service. Defendant also alleged that plaintiff was an illegitimate child of Doris Gilbertson Wahl and that he was not the father of said child.
At a pretrial conference held May 12, 1955, it was stipulated that plaintiff was an illegitimate child of Doris Gilbertson Wahl who had never been married to the defendant; that plaintiff and his mother had never been residents of the state of Kansas and had never been in Kansas; that defendant had never been adjudged in any state or territory of the United States to be the father of the plaintiff; that plaintiff was conceived in the state of Washington and he and his mother were residents of that state, and that service of summons on the defendant was obtained at Forbes Air Force Base while defendant was an active member of the United States Air Force.
A trial was had on October 13, 1955, at which plaintiff introduced further testimony and at which defendant failed to introduce any testimony. The trial court took the cause under consideration and on November 16, 1955, it found that the defendant was the father of the plaintiff and ordered that defendant pay the sum of $100 per month for the support of the child, the first payment to begin as of the date of the judgment and a like sum on the 16th day of each month thereafter until the further order of the court and during the minority of the child.
A motion for a new trial filed by the defendant was denied and he perfected his appeal to this court. His specifications of error cover his contentions later discussed.
The basic question presented by the appellant is: In determining whether the father of an illegitimate child has a non-statutory duty to support such child, is the law to be applied that of the state in which the plaintiff child is a resident, or the law of the state in which the father is a resident, or the law of any state in which he is served with process? In his argument appellant directs attention to certain decisions of this state and of the state of Washington and to statements to be found in various law treatises, which have been examined, but all of which, in view of our conclusions, need not be discussed. The gist of appellant's argument is that the domicile of an illegitimate child is determined by the domicile of the mother and not by that of the father, e. g., 17 Am.Jur. p. 628; that at common law the putative father was under no obligation to contribute to the support of his illegitimate child, e. g., 7 Am.Jur. 673; that in almost all jurisdictions the question is thought to be one subject to legislative control, and in the absence of statute, the common law is universally applied, and attention is directed to an annotation in 30 A.L.R. 1069, and to the statement therein that this state does not follow the general rule stated, and Doughty v. Engler, 112 Kan. 583, 211 P. 619, 30 A.L.R. 1065, is cited. Appellant, after some reference to the last mentioned case and to Myers v. Anderson, 145 Kan. 775, 67 P.2d 542, and to comments therein that the rule of the common law, that the father of an illegitimate child is under no legal duty to support it, is...
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