168 Ga. 86 | Ga. | 1929
Leila May Hooten and Mildred Lee Hooten, by their mother as next friend, filed their petition against William 0. Hooten, in which they make the following allegations: Essie M. and William C. Hooten married and lived together as man and wife for a number of years. Leila May Hooten, age 13, and Mildred Lee Hooten, age 10, are the issue of this marriage. The parents were totally divorced at a time when the children were “mere babies.” They have arrived at’ an age where it is expensive to maintain and keep them in school. Their father has not contributed anything towards their support since December 1927, when he stated that he was not going to pay them anything more. Up to that time the mother maintained a home for the children; but since the father has ceased contributing to their support she has had to break up her home and do the best she could in supporting and educating her children. She has been forced to send both of them to the State of Alabama, where her sister lives, in order to board them with her and let them go to school. She is boarding
The father demurred upon the grounds: (a) The petition is not authorized by law. (b) There is no provision of law or equity authorizing or sanctioning it. (c) It sets forth no cause of action, (d) Children can not sue their father for support by themselves or their next friend, where there is a total divorce between the father and mother, (e) It appears from the petition that the divorced wife of the defendant is suing for a sum named, for herself for the support of the children, which she has no right to do. The court sustained the demurrer and dismissed the petition. The children excepted.
We must first determine the law fixing the extent of the father’s duty to support and educate his minor children. “Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child.” Civil Code (1910), § 3020. So generally it is the duty of the father, having the ability to do so, to support his minor children. Some decisions hold that the duty of the parent to support and educate his minor children is merely a moral obligation, which is not enforceable in law independent of statute. 46 C. J. 1257, § 34, and notes 94, 95. The better view, as to the duty of the parent to support his minor children, rindoubtedly is that this obligation of the parent is a legal one, as well as a moral one. Id., and cases cited in note 97; Hines v. Mullins, 25 Ga. 696. This is so because it is his duty, under the above section of the code, to furnish such support if he is able. To this general rule there are exceptions. One of these grows out of the principle that the duty to support and the right to the custody and the earnings of his minor children are reciprocal (Civil Code (1910), §§ 3020, 3021; 46 C. J. 1256, § 34), and that whatever, deprives the parent of the right to the custody and
We think the court properly sustained the demurrer, for another reason. In our opinion the present suit is in effect one by the divorced wife to compel the father to pay an allowance which will go to her for the support and education of their children. It is true that the nominal plaintiffs, who sue by their mother as next friend, are these children. The petition alleges that they are of the ages of 13 and 10 years respectively. Due to their tender years they were probably not consulted about the bringing of this suit, and, if they had been consulted, were incapable of any direction about the institution of this proceeding. The petition further alleges that the mother is boarding these children with her sister in the State of Alabama, and is sending them to school in that State; that she is boarding them there on the strength of her credit; and that she is entitled to at least $100 per month for their support and maintenance, and she asks for this amount out of the earnings of the father. In these circumstances it is fairly inferable that this suit was instituted by the mother for her own benefit, in order to compel the father to make an allowance, in the nature of alimony, which will go to her as compensation for expenses incurred by her in boarding and schooling these children in the State of Alabama. In Joyner v. Joyner, 131 Ga. 217, 225 (62 S. E. 182, 18 L. R. A. (N. S.) 647, 127 Am. St. R. 220), this court held that “alimony will not be allowed to the wife on a separate proceeding, after a total divorce has been granted at the instance of the husband.” In that case the wife was seeking alimony in her own behalf alone. In Hall v. Hall, 141 Ga. 361 (80 S. E. 992), this court again approved the principle announced in Joyner v. Joyner, and further ruled that the wife can not “in her own name, in be
In Sikes v. Sikes, supra, the question whether a petition in equity would lie for the recovery of an amount which the father might be required to pay for the support of his minor children, was left open. In the first place, it is sufficient to say that the proceeding in the present case is no more one in equity than the one dealt with in Sikes v. Sikes. In that case the proceeding was brought to enforce the performance by the father of his duty to support his minor child. It is true that the petitioner prayed to have his father pay alimony for the support of the child; but this in no way affected the real purpose of the suit. The purpose of that proceeding and the proceeding in the present case is identical. The proceeding in the present case is no more one in equity than the proceeding in the Sikes case. Conceding, however, that the pres
In Leibold v. Leibold, supra, the Supreme Court of Indiana said that “equity has general jurisdiction of a suit by a wife "to compel her husband to support their infant children, independently of” certain statutes of the State of Indiana, which provided that a wife might sue for such support under certain circumstances. In that case the proceeding was brought by the mother against her husband, to obtain the custody of their minor children, and to require the
Judgment affirmed.
Leila May Hooten, age thirteen, and Mildred Lee Hooten, age ten, bring suit through their mother, Mrs. Essie M. Hooten, as their next friend against Wm. C. Hooten, 'and allege that Mrs. Essie M. Hooten and Wm. C. Hooten were married and lived together as man and wife for a number of years; that the two
The record in this case is unsatisfactory. For instance, the petition, does not allege whether or not provision was made in the verdict find decree in the divorce suit for the support and maintenance of the minor children of the husband and wife, who obtained a total divorce from each other; nor does the demurrer contain any special grounds of objection to the plaintiff's petition, the substance of which is set out in the foregoing statement of facts; nor does the order of the judge sustaining the demurrer to the petition, unless an amendment is filed within ten days, throw any light upon the question as to what the judge ruled the amendment should contain. Therefore we are entirely in the dark upon what ground the court sustained the demurrer conditionally. While much is said in the brief of the defendant as to what transpired at the time the divorce was procured, and subsequently, there is nothing in the record to sustain these statements. All that this court can consider is the petition and the demurrer filed thereto; and as there is no special demurrer filed to the petition, I am of the opinion that as against a general demurrer it sets out a cause of action. The petition, which was filed in the name of the minor children by their mother as next friend, alleges that the children are without means of support, and that the father, who earns $200 per month, refuses to support them. The demurrer necessarily admits this allegation. Under the law a father is bound to provide for the support and maintenance, protection, and education of his children until majority. Civil Code (1910), § 3020. Inasmuch as the petition alleges that the father has not done this, and there is nothing in the record to show the contrary, I am of the opinion that the demurrer should not have been sustained. See Waller v. Waller, 163 Ga. 377 (136 S. E. 149); Edmondson v. Edmondson, 128 Ga. 53 (2) (57 S. E. 308); Hall v. Hall, 141 Ga. 361 (2 a), supra.
In Brown v. Brown, 132 Ga. 712 (64 S. E. 1092, 131 Am. St.
In rendering the decision of the court Mr. Justice Holden,
Where, in a ease like the present, it is alleged that the mother is unable to provide the necessaries for their children and she has to send them away from her home and her own State in order to board them with a sister, I do not see why the same rule would not apply and hold the father responsible for the necessaries of his children, where no provision has been made for their support or education in- the divorce proceedings or otherwise, just the same as in a case where those necessaries have been furnished by a third person. The purpose of the law is to see that the children are supported and educated by the father of his children, who is able to do so, but who, according to the allegations of the petition in the present case, declines and refuses to do so. We are aware, as the learned Justice in the Brown case points out, that there is much conflict in the authorities on this question in outside jurisdictions, and that some courts hold that the father is not liable to the mother for expenditures made by her in support of the children under such circumstances. He goes on to say: “A majority of the authorities, however, seem to be in accord with the view which we entertain and have hereinabove expressed, to the effect that the father is liable. One of the reasons given in the authorities holding the contrary view why the father is not liable is that support and service are
It can not be held that this was a suit brought by the wife to recover alimony for the support of the minor children. The petition alleges in terms that it is a suit brought in the name of the minor children by the mother, for the support of the minor children, the father refusing to support them; and I construe this language to mean that no provision has been made by the verdict and decree in the divorce suit for their support. Nor is this a case where the wife is suing the father for necessaries she has furnished the minor children. This case is distinguishable from the case of Sikes v. Sikes, 158 Ga. 406 (supra), and similar cases, relied on by the majority of the court as controlling. That was a suit brought to recover alimony for the children. This is a suit under Civil Code (1910), § 3020, to require a father to support his minor children, where it is alleged he is able to do so, but refuses. Of course a suit for alimony could not be brought by or for the children, as held in the Sikes case; but this is not such a suit, and practically