Green Ex Rel. Green v. Green

May 20, 1936
Versions:210 N.C. 147
185 S.E. 651
1936 N.C. LEXIS 38
Devin, J.

Plaintiff’s appeal challenges the correctness of the ruling of the court below upon two points:

*149 1. Can an infant maintain an action against ber father for support?

2. And, if so, may she haye an allowance for counsel fees ?

The first question must be answered “Tes” and tbe second “No.”

1. It is held in Lynn Sanders and J. D. Sanders, by Their Next Friend, W. J. Pratt, v. R. M. Sanders, 161 N. C., 319: “There can be no controversy that the father is under a legal as well as a moral duty to support his infant children (Walker v. Crowder, 37 N. C., 487), and, if he has the ability to do so, whether they have property" or not. Hagler v. McCombs, 66 N. C., 345. There is a natural obligation to support even illegitimate children which the law not only recognizes, but enforces. Burton v. Belvin, 142 N. C., 153; Kimborough v. Davis, 16 N. C., 74.”

The liability of the father primarily to support the children remains as well after as before divorce, and even when the custody of the children has been awarded to the mother. 14 Cyc., 812, 9 A. & E. (2d Ed.), 871.

It was held in Small v. Morrison, 185 N. C., 577, that an unemanci-pated child could not sue the father for a tort (there the alleged negligent operation of an automobile). Recovery was denied in that case upon the sound principle of the necessity of preserving the peace and privacy of the home and maintaining harmony in' the domestic relations and family life. The ground upon which the right of action for tort by a child against a parent has been generally denied has been that, the family being the social unit, such actions would tend to undermine the influence of the home and were inconsistent with the family relation while it existed. Wick v. Wick, 192 Wis., 260; 52 A. L. R., 1113.

But, as pointed out in the well considered case of Small v. Morrison, supra, a distinction is made where the family relation had already been dissolved or disturbed and its harmony rudely shattered by the action of the father, quoting from Hewlett v. George, 68 Miss., 703, and Roller v. Roller, 37 Wash., 242.

Here it is alleged that defendant had obtained a divorce from plaintiff’s mother, had abandoned the plaintiff to the precarious support of charity, and denied her paternity. There was no family life to be preserved.

The right of an illegitimate child to maintain an action against his father was upheld in Hyatt v. McCoy, 195 N. C., 762.

Nor was plaintiff Johnsie Green relegated to a motion in the cause in the case of “Charles R. Green v. Dorothy Green” in the Superior Court of Forsyth County. That remedy would have been exclusive had the mother, Dorothy Green, brought a proceeding against the defendant for an allowance to her for the support of the child. In re Blake, 184 N. C., 278; In re Albertson, 207 N. C., 553. But here the suit is by the child in her own right against the father to enforce the performance of his statutory obligation to support his child. She was not a party to the *150 action in Forsyth County, nor could the issues raised by the pleadings in this action be properly determined there.

2. Upon the second question presented, there is no statute or principle of law recognized by this Court whereby plaintiff can require the defendant to pay counsel fees or maintenance pendente lite, in an action of this kind.

C. S., 1666 and 1661, specifically refer to actions for divorce or for alimony. These sections confer a right only on the wife. "While the principle is recognized that, under the common law, based on rulings and precedents of the ecclesiastical law of England, which still prevails to some extent as the basis for our State jurisprudence, the wife may have awarded to her in proper cases, independent of the statute, an allowance for counsel fees and suit money pendente lite (Medlin v. Medlin, 175 N. C., 529; Allen v. Allen, 180 N. C., 465-67), this rule does not apply to an action by the child against her father. Neither by statute nor by the common law is she entitled to such an allowance.

It follows, therefore, that the ruling of the court below denying allowance to plaintiff for counsel fees and support pending the action was proper, and that the judgment dismissing the action must be

Reversed.