West v. West
| Decision Date | 14 February 1928 |
| Docket Number | No. 5.,5. |
| Parties | WEST v. WEST. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Washtenaw, County, in Chancery; George W. Sample, Judge.
Suit by Irene West against Joseph G. West. Decree for plaintiff, and defendant appeals. Modified and affirmed.
Argued before the Entire Bench.Thomas, Shields & Silsbee, of Lansing (Clayton F. Jennings, of Lansing, of counsel), for appellant.
Louis E. Burke, of Ann Arbor, for appellee.
In June, 1924, plaintiff filed a bill for divorce against defendant in the Washtenaw circuit. Defendant appeared. February 11, 1925, the parties entered into a property settlement, in which plaintiff agreed to accept the sum of $1,250 and forever release defendant ‘from any and all claims of support and maintenance of myself and my minor child, Joseph West.’ February 19, 1925, plaintiff was granted a divorce from the bonds of matrimony, awarded the care, custody, and maintenance of the child, and granted the sum of $1 in lieu of dower. At the foot of the decree the circuit judge wrote:
‘The question of support for the minor child has not come before the court as yet.’
Defendant borrowed the $1,250 and paid his wife in accordance with the agreement of February 11, 1925, and, believing himself free from all marital and paternal obligations, contracted another marriage a few weeks after the divorce decree. At the time of the decree the child was about 7 years of age, and since that time he has been with and and supported by plaintiff. Plaintiff also had the household furniture, some of which she has sold.
October 26, 1926, plaintiff filed a petition asking the court to require defendant to maintain the child, claiming that on account of her ill health, the expense of operations and inability to work and earn money, and the expense of maintaining the child she had expended nearly all the money received from defendant and the sale of furniture. Defendant was notified and, under special appearance, moved dismissal of the petition for want of jurisdiction of the subject-matter. This motion was denied. Defendant then answered and averred that he had been unable to repay the $1,250 he had borrowed and paid to plaintiff; that he had remarried and had to purchase new furniture and all he then had was an equity of $100 in a home he was purchasing on contract; that he was earning $40 per week as a toolmaker, and offered to take the child. At the hearing, the needs of the child were made to appear and the pregnancy of defendant's second wife disclosed. The court, by decree, required defendant to pay $10 per week for the maintenance of his child.
Defendant appealed and claims:
‘(1) The circuit court was without jurisdiction to modify the decree so as to provide for alimony, since the original decree of divorce did not provide for the payment of alimony.
‘(2) That the plaintiff made no showing of such change of circumstances as to justify a modification of the original decree.
‘(3) The custody of the minor child should have been granted to the defendant as prayed for in his answer to the petition.
‘(4) The alimony granted in the modified decree for the support of the minor child is unreasonable and improper in amount.’
Defendant also relies upon the reasons alleged in his motion to dismiss.
If maintenance of a minor child is alimony, then there is some force in the second point. But if alimony is one thing and maintenance of a minor child distinctly another, there is no merit in points 1 and 2. There are to be found in some opinions and statutes rather loose expressions upon the meaning of alimony, and we take this occasion, under call to do so, to point out the distinction between alimony and maintenance of a minor child.
In this state husband and wife, during the pendency of a suit for divorce, may agree upon a property settlement and, in the absence of fraud, duress, or mutual mistake, be bound thereby. But as parents of a minor child, requiring maintenance, husband and wife cannot, by any agreement, take from the court the power, in case of divorce, to decree maintenance of the child.
[3] Divorce in this jurisdiction rests upon statutory provisions, and the statute allows the awarding of alimony to the wife upon dissolution of the marriage. The awarding of alimony is a statutory power; the maintenance of a child is a common-law obligation resting upon the father and enforced, in a divorce decree, under power conferred by statute. Alimony is the substitute for the common-law right of marital support. Care and maintenance for the minor child is not a substitute for the common-law obligation of the father to support his child, but an enforcement thereof in case of divorce. Defendant, as father of the child, is under common-law obligation to support his child. The divorce statute relative to the custody and maintenance of children of the parties is in recognition of the common-law obligation resting upon the father and leaves it to the court to prescribe the amount to be paid by the father for such purpose. The purpose is to assure support of the child, and, as long as the need exists, the obligation and power remain. Maintenance of a child is in no sense alimony, for alimony is a matter between husband and wife, while maintenance of a child rests upon the paternal relation.
So solicitous is the law for the welfare of the child that the decree for such support survives the death of the father and may be amended to give...
To continue reading
Request your trial
-
Robinson v. Robinson
...for themselves. This theory is also supported by Murphy v. Moyle, (Utah) 53 P. 1010; Creyts v. Creyts, (Mich) 106 N. W. 1111; West v. West, (Mich) 217 N. W. 924; Smith v. Funk, (Okla.) 284 P. 638; Newman v. Burwell, (Cal.) 15 Pac. (2d.) 511. However, some of these cases are apparently, base......
-
In re Smith
...obligated to safeguard the child's interests, even if doing so contravenes an agreement by the parents. West v. West , 241 Mich. 679, 683-684, 685-686, 217 N.W. 924 (1928).Nevertheless, the trial court's assumption of jurisdiction over a child does not subject an unadjudicated parent to the......
-
Kasper v. Metropolitan Life Ins. Co.
...stipulation that she proceed without opposition to take the divorce and by his signature on the judgment. She relies on West v. West, 241 Mich. 679, 217 N.W. 924 (1928); Newton v. Security National Bank of Battle Creek, supra; Flynn v. Flynn, 367 Mich. 634, 116 N.W.2d 907 (Black, J., dissen......
-
Miller v. State, Dept. of Revenue
...Cf. Sisson v. Schultz (1930), 251 Mich. 553, 232 N.W. 253; Benjamin v. Bondy (1948), 322 Mich. 35, 42, 33 N.W.2d 651; West v. West (1928), 241 Mich. 679, 217 N.W. 924; Herbstman v. Shiftan (1961), 363 Mich. 64, 69, 108 N.W.2d 869.18 The Oregon Supreme Court also found that, although the sta......