Yost v. Yost
Decision Date | 17 March 1937 |
Docket Number | 30. |
Citation | 190 A. 753,172 Md. 128 |
Parties | YOST v. YOST. |
Court | Maryland Court of Appeals |
Appeal from Circuit Court No. 2 of Baltimore City; Robert F Stanton, Judge.
Suit for maintenance by John Stevenson L. Yost, Jr., by Helen Gatchell Yost, his mother and next friend, against John Stevenson L. Yost. From an order sustaining a demurrer and dismissing the complaint, complainant appeals.
Affirmed.
Argued before BOND, C.J., and URNER, OFFUTT, PARKE, MITCHELL SHEHAN, and JOHNSON, JJ.
Edgar Allan Poe, Jr., of Baltimore, for appellant.
George M. Brady, of Baltimore (William Milnes Maloy and John H Lewin, both of Baltimore, on the brief), for appellee.
The main question presented by this appeal is whether an infant can sue its parent in a court of equity for maintenance, or for an increase in the amount of maintenance which the parent is, at the time of suit, then voluntarily paying toward the support of the infant.
The plaintiff, John Stevenson L. Yost, Jr., an infant now of the age of six years, by his mother and next friend, instituted suit against his father in the circuit court No. 2 of Baltimore City, on June 11, 1936, by which he prays that court to assume jurisdiction in the premises, and pass a decree directing his father, John Stevenson L. Yost, to pay his mother, Helen Gatchell Yost, such sum per month as said court may deem proper for the necessary expenses incurred by the infant, with due regard for his station in life, the increased cost of living, the increased earnings of his father, and the inability of the mother to secure employment in aid of his support. By the bill of complaint it is further set forth (a) that irreconciliable differences have arisen between the parents; (b) that the mother obtained a divorce a vinculo matrimonii from the father on October 23, 1933, in the state of Pennsylvania; and (c) that prior to the date of the divorce decree, to wit, April 19, 1933, in the municipal court of Philadelphia, at the suit of the commonwealth of Pennsylvania against the father, an order was passed directing the latter to pay the mother the sum of $50 per month for his support. It is alleged in the bill that the infant was not served with process in either of the aforementioned suits, nor was he made a formal party, or represented by a guardian ad litem or next friend in either action; that the annual income of the father had increased from $6,000 to over $8,000 since the passage of the order of the municipal court; that meanwhile the maintenance expenses of the infant had increased; and that demand for an increase in the monthly allowance to the infant had been refused, whereby the infant was unable to live in the manner to which his station in life entitled him. Accompanying the bill of complaint is a copy of an absolute decree by the court of common pleas, part 3, of Philadelphia, dated October 23, 1933, divorcing the father and mother, in which decree nothing appears as to the custody of the infant child of the parties to that cause; and also a copy of a decree and order of the municipal court of Philadelphia, dated April 19, 1933, directing the monthly payment for the support of the infant, as set forth in the bill, accounting from the date of the order, and requiring the father to execute a bond in the sum of $500 for the faithful performance of that order. Said decree or order of the latter court does not in terms retain the subject-matter of the decree for any future action by that court.
The defendant filed a combination demurrer and answer to the bill, accompanied by an exhibit tending to show a settlement agreement between the husband and wife, as of the date of its execution, November 17, 1930, which date antedates the birth of the infant plaintiff--March 10, 1931. One of the provisions of the agreement is that in event a child should be born to the parties prior to August 1, 1931, in addition to the amounts stipulated to be paid the wife, "the husband will pay to the wife for full support and maintenance of said child, the sum of $50 per month from July 10, 1931, until said child shall reach the age of three years, and thereafter while the wife has custody of the child, such sums for its support as may be mutually agreed upon hereafter."
The chancellor heard the case upon demurrer, and from an order sustaining the same and dismissing the bill of complaint, this appeal is taken. Reasons assigned for the demurrer are: (a) That the latter is bad in substance, upon the face of the bill and exhibits; (b) that the court was wholly without jurisdiction to maintain the suit; (c) that the matter in controversy had been settled and concluded by a decree of a court of record having jurisdiction of the subject-matter and of the parties to the suit, in a proceeding in which the infant plaintiff was legally represented by the commonwealth of Pennsylvania and his mother; (d) that the plaintiff had been, and was then being, provided for by the continued expenditure by the defendant of the sum of $50 per month for his benefit, pursuant to a binding agreement in that regard, approved by a court which had jurisdiction in the premises; and (e) that the infant plaintiff had no right or standing to maintain the suit against his father, the defendant.
By the bill of complaint in the instant case, it is alleged that the plaintiff and his mother, as well as the defendant, are now residents of the city of Baltimore; and in the argument of the appellee in this court, it was urged that the lower court was without jurisdiction because the matter of the amount of maintenance to which the infant was entitled had been adjudicated by the Pennsylvania court, and hence, under the full faith and credit clause of the Constitution of the United States (art. 4, § 1), it was res adjudicata.
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