Glynn v. Glynn

| Me. | Dec 21, 1900

Powers, J.

In 1898 the defendant obtained a divorce from the plaintiff for desertion. At the time the plaintiff deserted her husband, she willingly took with her their minor child, who has since remained with her. This is an action of assumpsit to recover for the board, care and clothing of the child since the divorce. No decree has ever been made in the divorce proceedings in regard to the care, custody and support of the child.

Irrespective of any statutory provision the father is bound by law to support his minor child. Gilley v. Gilley, 79 Maine, 292. This however is a limited obligation; it does not attach to the father under all circumstances, or in favor of all persons. A minor who abandons his father’s house without the father’s fault carries with him no credit on the father’s account, not even for necessaries. Weeks v. Merrow, 40 Maine, 151. “When the authority of the parent is abjured, without any necessity occasioned- by the parent, all obligations to provide for him,” the child, “ceasef.” Angel v. McLellan, 16 Mass. 27. Referring to the above language of Parker, C. J., the,court in Dodge v. Adams, 19 Pick. 482, say: “It would be no less true, that where the child is induced by another person to leave the family of the father without any necessity for so doing, the person thus influencing him to leave, would, in case he should furnish supplies, have no cause of action against the father.” It is necessary for the preservation of the parental authority and for the welfare of the child, that the father, who is himself without fault, in discharging the obligation which the law imposes upon him, should have the right to provide for the child under his own roof where he can exercise some judgment and supervision as to the wants of the child, and the character, cost and necessity of the supplies furnished.

In the case at bar the father was in no fault. He neither deserted his wife nor abandoned his child. There is no suggestion in the facts submitted that he did not treat them kindly, or that he failed to suitably provide for them at his own home. As between the parties in this case, it necessarily follows, from the fact that the divorce was granted to the husband for the desertion of his wife, that the plaintiff was in the wrong; that her act in abandoning her home and deserting her husband was without reasonable cause or justification and without the defendant’s consent. There may be separation, but there cannot be desertion by consent. The word itself negatives such a proposition. It affirmatively appears, therefore, that the defendant did not consent to the plaintiff leaving him, and we cannot infer that he consented to the going from home of the child whom the plaintiff willingly took with her at that time. This case is here upon an agreement of facts by the parties, and we cannot assume or infer a fact which they have not agreed upon. Trafton v. Hill, 80 Maine, 503. Under such circumstances, the plaintiff stands in no better position than would an intermeddling stranger, who should induce a child to leave its father’s home without his fault.

In Gilley v. Gilley, supra, cited and relied upon by the counsel for the plaintiff, the facts differed materially from the present case. There the father had not only deserted the plaintiff, who had obtained a divorce from him on that ground, but he had been absent from the State for many years prior to the decree, and had never returned or furnished any support whatever during the time, a virtual abandonment of his children. The opinion in that case' is based upon the ground that a father who deserts his infant child, and makes no provision for its support, is liable to one who furnishes it with necessary supplies, citing Dennis v. Clark, 2 Cush. 352; Reynolds v. Sweetser, 15 Gray, 80; Hall v. Weir, 1 Allen, 261 ; and Camerlin v. Palmer Co., 10 Allen, 539; that a divorce without a decree as to the custody and support of the children did not affect the father’s duties and obligations, and that when the bond of matrimony was dissolved, the parties became as good as strangers. We have already seen that a stranger, under the circumstances presented by the case at bar, could not maintain an action against the father.

Foss v. Hartwell, 168 Mass. 66" court="Mass." date_filed="1897-02-27" href="https://app.midpage.ai/document/foss-v-hartwell-6425904?utm_source=webapp" opinion_id="6425904">168 Mass. 66, was a case which in many respects closely resembles the one before us. The father had obtained a divorce from the mother for desertion without any decree being made as to the support or custody of their minor son. After the divorce the mother met the son on his way from school and took him to the home of the plaintiff, whom she had meanwhile married. Upon being asked by the father with whom he preferred to live the boy, who was then thirteen years of age, said he preferred to live with his mother. From this arrangement the father did not dissent, but the next day sent the boy’s personal effects to him at the plaintiff’s house. It was held that the plaintiff had no right without communicating with the father to look to him for the child’s support. “All the cases cited show very plainly that, when the wife leaves without cause, taking her child with her, the fact that her husband does not attempt to compel her to give up the custody of the child does not of itself authorize her to bind him for its support” say the court in Baldwin v. Foster, 138 Mass. 449" court="Mass." date_filed="1885-01-09" href="https://app.midpage.ai/document/baldwin-v-foster-6421539?utm_source=webapp" opinion_id="6421539">138 Mass. 449. True, in that case, there was evidence that the father was able and willing to furnish the child with a suitable home, and to support it, and that he so notified the plaintiff, the maternal grandfather of the child. The agreed statement of facts in the present case is silent upon this point. The- support of his minor children by the father is not only a legal obligation and a natural duty, but the dictates of humanity and the promptings of affection impel parents, whether fathers or mothers, to support and provide for their offspring. It is not to be presumed that the defendant neglected his duty, or was unwilling to perform it. Trafton v. Hill, supra. We quote once more, as applicable to the case at bar, from the opinion in the case of Dodge v. Adams, supra. “The plaintiff does not show that any necessity existed for his interference, any want of full and adequate provision for the children at the house of their father, or any facts tending to prove that it was necessary to maintain them elsewhere. So far as it appears in the case, they left without the consent of the father, and without any fault upon his part.....The proof of such facts must come from the plaintiff. The burden is upon him to show that there existed a necessity for furnishing these supplies, and that this nécessity was occasioned by the defendant.”

It is not claimed by the counsel for the plaintiff that the mother, who has voluntarily assumed the exclusive custody of her child, has any greater right to maintain an action against the father for its support since the enactment of the laws of 1895, c. 48, § 1, than she had at common law. On the other hand, we do not find it necessary for the determination of this case to consider the question raised by the defendant that the statute along with the joint right to custody given, carried with it the joint duty of support, and that the mother, who exercises that right to the exclusion of the father, thereby assumes the sole responsibility for supplying the necessities of her child. Grave doubts may be entertained whether that statute was intended, under any circumstances, to add to the burdens of the mother; but upon this question we express no opinion.

Judgment for the defendant.