Carter v. BeaverCarter v. Beaver
- Reporters:
- ,
- Before:
- Maddox, Hornsby, Shores, Houston, Kennedy
(1) Is a noncustodial parent entitled to receive one-half of the proceeds from a wrongful death action filed by the custodial parent?
(2) Do the provisions of
Ala. Code 1975, §§ 6-5-390 and-391 , merely govern the procedure for filing an action based on the wrongful death of a minor, or do they also control the distribution of proceeds received from such an action, in light ofAla. Code 1975, § 43-8-42 , which governs the distribution of an intestate‘s estate?
FACTS
On July 28, 1980, Clayton Carter, Jr., and Mary Beaver were divorced. Pursuant to the judgment of divorce, Beaver was awarded custody of the couple‘s children. On February 11, 1987, Christopher Carter, their minor son, was killed in an automobile accident. As the custodial parent, Beaver filed a lawsuit in the Circuit Court of Marshall County, Alabama, seeking damages for the alleged wrongful death of Christopher. She received a settlement in the amount of $620,000.
At the time of Christopher‘s death, Carter had obligations for his support, maintenance, and education, as set forth in the divorce judgment. Those obligations, in addition to the payment of child support, included the payment of all medical and dental expenses incurred by, and for the benefit of, Christopher. Additionally, Carter had the obligation to maintain life insurance on his own life, naming the parties’ minor children, including Christopher, as beneficiaries. Carter claims that he was current in all of his obligations, but Beaver says that the record does not support his claim in this regard.
On February 8, 1989, Carter filed a declaratory judgment action, asking the court to declare that any proceeds received by Beaver in the underlying wrongful death action must be distributed in accordance with the laws of descent and distribution as provided for in
I
Carter‘s basic argument is that the legislature, when it amended
II
In order to determine what the legislature intended when it amended
A significant amount of the history of the statutes is contained in Cofer v. Ensor, 473 So.2d 984 (Ala. 1985), a case involving a question of whether a one- or a two-year statute of limitations should apply, but we briefly restate some of the history of these statutes for the purpose of deciding the issues here presented.
There was no right of action at common law for the death of a child, and the right to recover damages therefor is purely statutory. Taylor v. City of Clanton, 245 Ala. 671, 18 So.2d 369 (1944). The original act giving the parents a right of action for the wrongful death of a minor was enacted in 1872 and was codified in 1876.1
A code commissioner‘s note to
Based on this history, therefore, prior to 1872, only the personal representative could maintain a cause of action for the death of a minor or of an adult, and when parents were given the right to sue for the wrongful death of a minor child, the legislature made no provision, as it had done in the original wrongful death act, for the distribution of the proceeds from any recovery had in such an action.
Alabama cases discussing the distribution of the proceeds of wrongful death actions based on the death of minor children decided under the unamended version of
Carter contends that, although the custodial parent has the exclusive right to bring the wrongful death action, that parent does not have the exclusive right to the proceeds from that action. He argues that the proceeds should be distributed according to Alabama‘s general wrongful death statute,
Before the 1979 amendment that allowed both a father and a mother to recover for the wrongful injury or death of a child, the courts looked to the common law to see who was to receive the benefits awarded in such an action. The common law recognized the obligation of the father touching the maintenance, education, and care of his family, and, in return, the right of the father to the services of the child. In recognition of the father‘s right to the services of his child, he was given the sole right to bring the wrongful death suit. Because the father had the exclusive right to bring suit, he also had the exclusive right to the proceeds. Mattingly v. Cummings, 392 So.2d 531 (Ala. 1980); Jones v. Jones, 355 So.2d 354 (Ala. 1978); Thorne v. Odom, 349 So.2d 1126 (Ala. 1977); Peoples v. Seamon, 249 Ala. 284, 31 So.2d 88 (1947). Prior to the 1979 amendment, when the father was dead, had deserted the family, or had become insane or otherwise unable to perform his parental obligations, he lost the right of action, and a right of action then accrued to the mother. Ex parte Roberson, 275 Ala. 374, 155 So.2d 330 (1963). But the mother had a right of action only when the father had lost his right to bring the action. When the mother accrued the right to bring suit, she also accrued the exclusive right to the proceeds from the action.
The 1979 amendment to
It has long been settled that if a deceased child leaves a parent in the exercise of parental care, a wrongful death action based on the child‘s death is controlled entirely by
Carter cites Coleman v. Stitt, 514 So.2d 1007 (Ala. 1987), and especially the special concurrence of Mr. Justice Beatty in that case, in support of his argument. In Coleman, this Court recognized the fact that a father or a mother, but not both, could bring an action for the wrongful death of a child, and Mr. Justice Beatty, in his special concurrence, did state that “the father and the mother, however, now have an equal right to commence such an action, and, it follows, an equal right to any recovery of the proceeds.” Coleman is distinguishable. There, both the father and the mother had a right to bring the action, because they were married and were living together. In this case, it is undisputed that the father and mother were divorced; therefore, the parent having the custody of the minor had the exclusive right to bring the action.
Based upon the history of
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.