Wells v. Wells

• Decision Date: 17 September 1947
• Docket Number: 97
• Parties: WELLS v. WELLS.
• Court: North Carolina Supreme Court

44 S.E.2d 31

227 N.C. 614

WELLS v. WELLS.

No. 97

Supreme Court of North Carolina

September 17, 1947

Civil action to recover for and on account of expenses incurred by plaintiff in the necessary maintenance of the son of plaintiff and defendant, who prior to and since his twenty first birthday was and has been mentally and physically incapable of earning a livelihood,--heard upon demurrer to complaint filed by plaintiff.

Plaintiff alleges in material aspects: That she and defendant were married to each other on 7 April, 1917, and to them R. S Wells, their oldest child, was born on 28 October 1919;

'3. That since on or about the ____ day of February, 1938, when defendant left the residence which was then being occupied by plaintiff, defendant and their children, the defendant has been living separate and apart from said plaintiff;

'4. That prior to and at the time defendant separated himself from plaintiff, they and their children including said R. S. Wells, were living in Elm City in the above named State and County and in the residence which had been theretofore occupied by plaintiff, defendant and their children; * * *

'6. That said R. S. Wells, prior to, at the time of, and since he reached the age of 21, has, except when away at school resided and still resides with and been under the care of his mother;

'7. That said R. S. Wells, prior to, at the time of and at all times since, his 21st birthday, has been and still is unmarried, insolvent and so handicapped, both mentally and physically, as to be absolutely incapable of earning a livelihood and is absolutely dependent upon the plaintiff, his mother, in whose care and custody he was left, for sustenance, care and support, and for the necessities of life and in fact, has been, and still is in such condition mentally and physically as to require more or less constant supervision, care, attendance and attention, and to such an extent as to take up the larger portion of plaintiff's time, both by day and night, and greatly handicap the plaintiff in her normal life, activities and opportunities;

'8. That for several years past and particularly since said R. S. Wells has passed his 21st birthday, the defendant has wrongfully abandoned said R. S. Wells, his son, and the supervision, support and maintenance of said R. S. Wells to this plaintiff, his mother, and, except in small insignificant and wholly inadequate occasional contributions, has abandoned said child, his son, and his necessary maintenance, nursing, care and support to the plaintiff who has, at her personal expense, burden, trouble and sacrifice and by and through her personal efforts, been compelled, through defendant's misconduct, to supply and has in fact during said period of time, supplied said R. S. Wells, with the necessities of life, including food, clothing, heat, medical attention, nursing and necessary personal attendance, attention and supervision, and, except for the home and its furniture, each and every comfort, care and attention, as well as the constant supervision required by his mental and physical handicaps;

'9. That the value of the necessities and necessary services and attentions as above outlined and so furnished by plaintiff to said R. S. Wells have been well worth the sum of $250.00 per month for each and every month since said R. S. Wells reached his 21st birthday, and the plaintiff, who has furnished the same is entitled to recover from defendant their value and particularly up to the 28th day of October 1946, in the total sum of $18,000 or some other large sum;

'10. That defendant is in fact, in law, and in morals wholly responsible for said necessities, the burden of which he has wrongfully attempted to shift to plaintiff and he is a man of considerable means and property and amply able to provide and pay for the same.'

Upon these allegations plaintiff prays judgment, etc.

Defendant demurred to the complaint filed in the above entitled action 'for that it appears upon the face thereof that it does not state facts sufficient to constitute a cause of action, in that the plaintiff is suing upon an implied contract for necessaries, and for her own personal services furnished to her son, who is also the son of the defendant, who was, during the period covered by the suit, more than 21 years of age', and moved 'that the action be dismissed.'

The court sustained the demurrer, and ordered the action dismissed at cost of plaintiff and her surety. She appeals to Supreme Court and assigns error.

Lucas & Rand, of Wilson, and Ehringhaus & Ehringhaus, of Raleigh, for plaintiff appellant.

Larry I. Moore, of New Bern, Battle, Winslow & Merrell, of Rocky Mount, and Varser, McIntyre & Henry, of Lumberton, for defendant appellee.

WINBORNE Justice.

The question presented on this appeal is one of first impression in this jurisdiction. While the duty of the father to support his children during minority has been the subject of decision in opinions of this Court, it is conceded on this appeal that the duty of the father to support his child, who is defective mentally or physically, and who after reaching the age of twenty one years continues in such condition, has not been the subject of decision in this State. The fact that the latter is true may be due to the fact that the defective children are relatively few when compared with all children in the State, who by nature must pass through the period of minority when they are held, in law, to be incapable of managing their own affairs, and to be under the jualous protection of the law. Or it may be, as Kent says: 'The obligation of parental duty is so well secured by the strength of natural affection, that it seldom requires to be enforced by human laws.' 2 Kent in American Law 190.

Be that as it may, this question is now presented: Is a father under legal obligation to continue to provide necessary support to his son, who prior to, and after reaching the age of twenty-one years is and continues to be insolvent, unmarried and incapable, mentally and physically of earning a livelihood? We hold that he is under such obligation.

'The duty of parents to provide for the maintenance of their children is a principle of natural law. ' It is 'an obligation laid on them not only by nature herself, but by their own proper act, in bringing them into the world * * * By begetting them, therefore, they have entered into a voluntary obligation to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved.' 1Blackstone's Commentaries (Lewis's Edition) 419.

Basically, the duty of parents, primarily the father, to provide necessary support, care and maintenance for their children may be said to rest on the inability of children to care for themselves. 'The wants and weaknesses of children render it necessary that some person maintains them, and the voice of nature has pointed out the parents as the most fit and proper persons. The laws and customs of all nations have enforced this plain precept of universal law * * * The obligation on the part of the parent to maintain the child continues until the latter is in a condition to provide for its own maintenance.' 2Kent on American Law 190.

Ordinarily a child, in the eyes of the law, is in a condition to provide for his own maintenance when he has reached the age of twenty one years, that is, has attained the status of majority. That age was arbitrarily fixed at common law for the termination of the child's minority, and the attainment of his majority, and the rule has remained in force throughout the United States. 27...