White v. White

• Decision Date: 03 March 1913
• Parties: WHITE v. WHITE.
• Court: Missouri Court of Appeals

154 S.W. 872

169 Mo. App. 40

WHITE v. WHITE.

Kansas City Court of Appeals. Missouri.

March 3, 1913.

1. DIVORCE (§ 171) — DECREE — MATTERS CONCLUDED.

Where defendant and her minor child were without the jurisdiction, the court could not, upon granting a divorce on substituted service, award the custody of the child; consequently the judgment in the divorce suit, not having determined the question of the support and custody of the child, is no bar to an action by defendant against her husband, plaintiff in the divorce suit, for money expended in the support of the child.

2. DIVORCE (§ 323) — SUPPORT OF CHILD — ACTIONS FOR SUPPORT.

In an action by a divorced wife against her husband for money expended in supporting their minor child, evidence held to show that the allegation in defendant's answer that he was willing to support the child if given the custody was not made in good faith.

3. DIVORCE (§ 323) — DUTY TO SUPPORT CHILD.

Though a wife wrongfully deserted her husband, betaking herself and their minor child out of the jurisdiction, and the husband secured a divorce, but made no attempt to obtain the custody of the child, the wife may, if the means of the parties are so disproportionate that she is unable to support the child according to its station, and it is for the benefit of the child, recover from the husband money expended in supporting the child.

Appeal from Circuit Court, Henry County; C. A. Calvird, Judge.

Action by Edna Belle White against Leslie Lee White. From a judgment for plaintiff, defendant appeals. Affirmed.

N. B. Conrad, of Montrose, for appellant. C. I. Davis, of Clinton, for respondent.

JOHNSON, J.

This suit was instituted in the circuit court of Henry county in December, 1911, by the divorced wife of defendant to recover money expended by her for the support and maintenance of their minor child from January 11 to November 20, 1911. The petition alleges that the parties were husband and wife from December 14, 1904, to January 11, 1911; that on the latter date the circuit court of Henry county, in an action prosecuted by defendant, rendered a judgment and decree granting defendant a divorce from plaintiff on the ground of desertion; that at that time their minor child, Mildred, was living with plaintiff; that the court made no order relating to the child, and since the rendition of the judgment plaintiff has had its care and custody, and has been at an expense of $12 per month in providing the child with the necessaries of life. Further it is alleged that plaintiff is "without means of support, except as she earns the same for herself and said child, but that defendant is the owner of valuable property, both real and personal, and is abundantly able to support said minor child." The prayer is for personal judgment against defendant in the sum of $123.60, the reasonable cost of the maintenance of the child for a period of more than 10 months following the date of the judgment for divorce.

Defendant demurred to the petition on the grounds that "the court has no jurisdiction of the subject of the action"; that "plaintiff has no legal capacity to sue"; that "there is a defect of parties plaintiff"; and that the petition "does not state facts sufficient to state a cause of action." The demurrer was overruled, and defendant answered, pleading defenses the nature of which will be disclosed in the questions of law we find it necessary to discuss and determine. A jury was waived, and, after hearing the evidence, the court rendered judgment for plaintiff in accordance with the prayer of her petition. Defendant appealed.

The material facts of the case are as follows: The parties were married in Jackson county, Mo., December 14, 1904, and lived together as husband and wife until July 1, 1907, when plaintiff without just cause deserted her husband, and left the state, taking their infant child with her. Since that time the child has been with plaintiff continuously, has been supported by her, and it does not appear that defendant ever made any attempt to recover the child, or manifested any paternal solicitude about her. The first thing he did after his wife's desertion was to bring suit for divorce in the circuit court of Henry county, returnable to the January, 1911, term of that court. Plaintiff then was living with the child in Chicago, and constructive service was made on her by publication. Nothing was said about the child in the petition for divorce, nor in the judgment subsequently rendered in favor of defendant. In the present answer defendant alleges that he is able and willing to support the child, provided he may have its custody, and he repeats the offer in his testimony. Further, he testifies that he did not know where the child was living when he brought the divorce suit.

It does not appear that plaintiff ever attempted to conceal the whereabouts of the child from defendant, or that defendant ever made any effort to discover where his child was living, or to recover possession of her. Apparently he has been willing that the child should remain with her mother as long as her mother supported her. This is not a case such as that of Libbe v. Libbe, 157 Mo. App. 610, 138 S. W. 688, where the wife brought an action at law against her husband during the pendency of the divorce suit to recover her expenses in supporting a minor child incurred after their separation. We held in that case that such issues were involved in the divorce suit, and could be raised only in that proceeding. In the present case the alleged cause of action arose after the the final determination of the divorce action, in which, owing to the fact that both defendant in that suit and the infant offspring of the marriage were beyond the jurisdiction of the courts of this state, the issue of the custody of the child and its maintenance was not involved, and could not be litigated. "If defendant and the minor children are not within the jurisdiction of the court and a divorce is granted upon substituted service of process, the court cannot assume jurisdiction over the person of the children and award their custody to plaintiff; but, once having acquired jurisdiction of the person of defendant, the court retains it for the purpose of decreeing the custody of the children." 14 Cyc. 804; Jennings v. Jennings, 85 Mo. App. 290. The judgment in the divorce suit did not determine issues pertaining to the custody and support of the infant, and therefore is not a bar to the maintenance of the present action.

Since these issues were not involved in the divorce suit, the defendant cannot be said to have acquiesced in his wife's custody of the child from the mere fact that he did not seek to have his right of custody determined and enforced in that action, but we are moved to say from a careful consideration of the whole case as disclosed by the record that the allegation of defendant in his answer that he is ready, able, and willing to support the child, if he can have possession of it, is not made in good faith, but for the mere purpose of interposing a defense to plaintiff's demand. In the first place, defendant must be held to have known, when he filed his answer, that the issue of his alleged right to the custody of the child could not be inquired into and determined in the present action, which, as stated, is a suit at law in the nature of assumpsit to recover a debt created by operation of law from the performance by plaintiff of a duty imposed by law on defendant. If defendant was unjustly deprived by plaintiff of the custody of their child, he had his remedy, which he could have had enforced in an appropriate action. He has refrained all these years from making any effort to assert his right, and has suffered his wife to keep the child in peace until she moved in court to compel him to defray the cost of its support, when, for the first time, he advances the plea that he would support the child if plaintiff would surrender it to him. The past conduct of plaintiff discloses that she would not voluntarily give up the child under any circumstances; and, as both she and her child are without the jurisdiction of the courts of this state, the hypocrisy of defendant's plea is apparent. His real position is that he is willing plaintiff should keep their child at her own cost, and denies that he owes any duty to the infant as long as it remains in the custody of plaintiff.

Counsel for plaintiff do not contend that defendant may be held liable on an implied contract to reimburse plaintiff for money already expended in the necessary support of the child, but base the cause of action on the primary duty imposed by law on the father to support his minor children. In substance, the argument in support of plaintiff's position is that defendant should not be allowed to shift the performance of such primary duty to the shoulders of plaintiff, whose means will not permit her to maintain the child...