22 S.W.2d 1003 | Ark. | 1930
Appellant was formerly the wife of appellee. In June, 1926, on her complaint, which was uncontested, she was, by the Johnson Chancery Court, granted a divorce from appellee, and in August following was married to her present husband, Frank McWilliams. Thereafter, in October, 1926, appellee sued Frank McWilliams for damages for alienation of his wife's affections. This suit resulted in a verdict and judgment against McWilliams in the sum of $2,500. On appeal to this court, said judgment was affirmed on December 3, 1928. McWilliams v. Kinney,
After hearing the evidence, including the testimony in the case of Kinney v. McWilliams, which was made a part of the record in this case by agreement, the court entered a decree dismissing appellant's complaint for want of equity, and she has appealed.
The complaint in the divorce case made no mention of a child, and the decree was therefore silent as to its custody. When appellant married McWilliams in August, 1926, this child was taken into the McWilliams family as a member thereof, and has ever since been *838 supported, maintained and educated by the funds furnished by Frank McWilliams. Appellant admits that she had no money when she married the second time, has earned none since, and that the money she spent on her child was furnished by her husband. She brought this suit in her own name to recover an amount expended, in fact, by her husband, and caused him to be garnished just about the time he would be required to settle the judgment in the alienation suit. But for that judgment, it appears doubtful that this suit would have been brought.
The dissolution of the bonds of matrimony creates a new relationship between the parties. Whereas, they were husband and wife, with all the privileges, immunities and burdens imposed by law because of this relationship, they are now strangers in law, third parties, as it were, with no legal obligations, each to the other, except those preserved by decree or contract. When a child is born, both become parents, and, although the ties of matrimony may be broken by decree of court, none can be made that severs the relation of parent and child. It is the rule in this State, and, generally elsewhere, that the father is bound, primarily, in case of divorce, to support his infant children, and this, too, where the decree of divorce awards the custody of the child to the mother, with no provision being made regarding support. One of our leading cases on the subject is Holt v. Holt,
These cases announce correct principles of law, and we do not intend to impair them in the least by the decision we now make in this case. As we view the case in hand, it is entirely different from them, and is not controlled by them. Here the wife obtained a divorce, apparently, for the purpose of marrying the man who had stolen away her affections. She obtained it on a complaint that did not disclose to the court the existence of a child, and under a decree that was silent as to its custody or support, and without any agreement with her husband touching its custody or support. After marriage, *840
the child was taken into the McWilliams home as a member of the family, and was supported and schooled with money furnished by the step-father, for about two and one-half years, without any claim being made, and then only when pay-day had come on the alienation judgment. We think the chancery court was amply justified in holding them mere volunteers, and in denying a recovery for support money prior to the suit. Nor do we think any error was committed in denying a recovery for future support, so long as the same conditions prevail. Nelson v. Nelson,
Considering all the facts and circumstances in this case, we have reached the conclusion that the decree is correct, and should be affirmed. It is so ordered.
HART, C.J., SMITH and BUTLER, J.J., dissent.