39 N.W.2d 103 | Minn. | 1949
Lead Opinion
Plaintiff, the wife, commenced an action for separate maintenance and support. Defendant then filed an answer and a cross bill for an absolute divorce on the ground of cruel and inhuman treatment. In his cross bill, defendant alleged that plaintiff was not a suitable person to have the care and custody of their two minor children and prayed for their custody. Prior to the trial, plaintiff moved and was permitted to withdraw her complaint without prejudice, whereupon the cause was tried on the issues framed by defendant's cross bill and plaintiff's reply.
Although the trial court denied defendant a divorce — on the ground that both parties had been guilty of cruel and inhuman treatment — it awarded custody of the children to plaintiff and ordered defendant to pay plaintiff $500 per month as permanent alimony and as support money for the two minor children, who were then five and eight years of age. In addition, defendant was ordered *335 to pay all reasonable medical, psychiatric, and special schooling expense reasonably necessary for the eldest child, who was retarded mentally; monthly mortgage installments to come due on the family home, the possession of which was awarded to plaintiff; and certain attorneys' fees.
By her appeal from the judgment, which was entered after her motion for a new trial was denied, plaintiff raises the fundamental issue of whether a trial court in a divorce proceeding, after denying a divorce therein, retains jurisdiction in the same proceeding — in the absence of statutory authorization therefor — to make an order providing for the custody and the maintenance of the minor children of the parties where such parties, without the benefit of any adjudication, are in fact living separate and apart from each other.
In considering the above issue, it should be borne in mind that the parties at all times pertinent have been living inunadjudicated separation; that the issue of custody was raised by the pleadings2; that a divorce was denied on the merits; and that the trial court — as shown by its memorandum, which was made a part of its order — awarded plaintiff alimony and possession of the household primarily as a necessary incidentto the support order for the children and not by reason of anymerit on her part.
1. G. S. 1913, § 7140 (Mason St. 1927, § 8614), as construed in Jacobs v. Jacobs,
2. It is the general rule that, if for any reason a husband and wife have in fact separated and are living apart, the court, when its power is invoked by habeas corpus proceedings, may determine which parent shall have the custody of the children, and that the court in such cases will place the interests of the children above the rights of either parent and will make such provisions for their care and custody as will best serve their welfare.3 State ex rel. McDonough v. O'Malley,
3. It is well settled in this state, and by the great weight of authority elsewhere, that, independently of any statute on the subject, the court in the exercise of its general equitable powers, though an action for divorce or separate maintenance is not pending and though grounds for such action do not exist, may award the wife support and maintenance where she is justifiably living apart from the husband.4 Obviously, this general equitable power includes the right to make provisions for the custody and maintenance of minor children, who are in no way responsible for the *337
failure of their parents to live together. See, Jacobs v. Jacobs,
Although the general power of a court of equity, independent of divorce proceedings, to make provision for the custody and maintenance of infants is universally recognized, there is a substantial division of authority as to whether that power may be exercised in a divorce action after the court has denied a divorce or separate maintenance. 17 Am. Jur., Divorce and Separation, §§ 677, 702; 2 Nelson, Divorce and Annulment (2 ed.) § 15.34. One line of authority holds that, although statutes relating to divorce empower courts granting divorces to make provisions for the support and custody of the children, such relief is strictly statutory and incidental to the actualgranting of a divorce, and that where a divorce is denied no power remains to make orders in such action for support and maintenance. These strict-construction courts concede, however, that after the parties in a divorce action have been ousted from the court's jurisdiction through a denial of divorce, they may at once reenter through a different jurisdictional door in the form of a subsequent proceeding for the determination of custody and maintenance, either by resort to habeas corpus or to an independent suit in equity.
4. The more modern and better rule, the one we choose to follow, is that a court in an action for a divorce, after denying a divorce, retains jurisdiction in the same action, under its general equitable *338
powers, to make provisions for the care and custody of the minor children where the parents are in fact living apart from each other. Although the granting of a divorce is purely statutory, it is fundamental that, when a statute is passed authorizing courts in equity in divorce actions to determine the custody of children, it merely makes applicable to divorce actions an equitable jurisdiction which the courts already possess and which might be exercised without the aid of a statute. The enactment of such statutes, though fundamentally not necessary, has served a useful purpose, because it has made for procedural certainty. Dovi v. Dovi,
It is contended that the trial court erred in granting plaintiff permanent alimony after a divorce had been denied to defendant. It is argued that by doing so the court in effect awarded plaintiff separate maintenance, which is a statutory right available only to the wife and only on her complaint and demand. We find no error. In making provisions for the custody and maintenance of the children, the court was not, as an incident of a divorce proceeding or otherwise, adjudicating custody or other rights of the parents as against each other, but was simply exercising its general equitable power to protect the children from neglect arising from parental strife. The trial court did not decree that the parties should live separately. They are free to end their separation and live as husband and wife with a single place of abode. Neither the justification nor the necessity for separate living has ever been adjudicated. The trial court simply and primarily made provision for the minor children, whose needs arise wholly out of an existing but unadjudicated separation of their parents. Neither the court nor the children are responsible for the failure of the parents to maintain a unified family home; but when such parents do live in separation, it becomes the court's duty to protect the children by fixing, when the circumstances of the individual case so require, a definite responsibility for their care and maintenance. Beyond the bodily essentials of food, clothing, and medical care, minor children require constant and responsible supervision. Here, the trial court did nothing more than safeguard the children's welfare. In a memorandum made part of the order denying plaintiff's motion for a new trial, the trial court said that the provisions forthe support of plaintiff were made primarily as a necessaryincident to the support order for the children, and not by reason of any merit on plaintiff's part. In other words, independent of the needs of the children, no separate maintenance was provided for the wife, and *340 the allowance to her of alimony is simply a device to give the children essential supervisory care. It makes little difference whether a financial provision primarily for the benefit of minor children is in part called alimony or called — what it here is in fact — a special allowance for the maintenance of a person charged with responsibility for their supervision. Similar considerations justify awarding plaintiff, for the welfare of the children, the use of the family home. If at any future time the parents should elect to live together and thereby to assume a normal role in caring for their children, then, upon a proper showing to the court, they will no doubt be permitted to enjoy, without court supervision, a joint and voluntary responsibility for their children's welfare.
5-6. Defendant made a motion to dismiss plaintiff's appeal on the ground that plaintiff had accepted all the benefits awarded to her under the judgment and decree from which she appealed. The motion is without merit. As already noted, plaintiff was awarded alimony and possession of the family home, not for thepurpose of conferring upon her any benefit or in recognition ofany merit on her part, but primarily as a necessary incident to the provisions that were made for the care and custody of the children. The acceptance by a plaintiff wife of an award to her of the custody of the children and of provisions which are made primarily for their care, support, and benefit is not such an acceptance of the benefits of a judgment as will preclude plaintiff personally from attacking it on appeal. See, Spratt v. Spratt,
Plaintiff is allowed $500 as attorney's fees on this appeal. Statutory costs are denied to defendant.
The judgment of the district court is affirmed.
Affirmed.
Concurrence Opinion
I concur in the result.
