Miller v. Morrison, 43 Kan. 446

43 Kan. 446 | Kan. | 1890

The opinion of the court was delivered by

Valentine, J.:

In this state, under all ordinary circumstances, the father and mother of minor children born in lawful wedlock have an equal and joint right to the possession, custody and control of their minor children, and neither has a superior right to the other. (Const, of Kansas, art. 15, §6; act relating to guardians and wards, §1; The State v. Jones, 16 Kas. 111.) And as a consequence of such equal and joint right, they are also under an equal and joint obligation to care for and to support and educate their minor children. (Harris v. Harris, 5 Kas. 45, 50.) In the case just cited, the following language is used:

“But this obligation rests equally upon the mother, and this whether it be regarded as a legal or natural duty; originally it was a purely natural obligation, resting upon both parents alike. At an early period a sanction was added to this natural duty by the statute, 43 Eliz., ch. 2, which directs that, ‘The father and mother, grandfather and grandmother of poor, impotent persons, shall maintain them, if of sufficient ability, as the quarter sessions shall direct! (Black. Com. 448.) This statute, being in aid of the common law and to enforce a natural duty, is adopted in this state by statute. (Comp. Laws of 1862, 678.) This statute makes it alike the duty of the mother, as of the father, to support their children, and applies only to those unable to support themselves, whether they be minors or not, and makes this duty dependent upon the ability of the ancestor to discharge it; without this ability there is no legal liability.”

It will be seen by an inspection of our constitution and statutes, that the rules of the common law with respect to the rights and duties of fathers and mothers with regard to their minor children have been considerably changed and modified in Kansas. The tendency in Kansas has always been toward an exact equality among the sexes under the law. The tendency has been to place all adult persons, male and female, upon the same legal plane so far as such a thing can be accomplished. But while the rights of parents under the laws of Kansas to the custody and control of their minor children are exactly equal, yet neither has such an absolute right in this regard that it may not under particular circumstances, or by contract, or by a decree of a court, be greatly modified or absolutely abrogated. (Act relating to minors, § 5, et seq.j Civil Code, § 645; In re Bort, 25 Kas. 308; Chapsky v. Wood, 26 id. 650; Walrath v. Walrath, 27 id. 395; Strong v. Marcy, 33 id. 109; Chandler v. Dye, 37 id. 765.) We suppose that it will be admitted that the obligation or duty of the plaintiff Miller, to see that his son Harry should be properly supported and eared for, was not completely annulled by the decree rendered in the divorce case; but certainly by such decree his obligation to that effect was made only secondary, and that of his divorced wife Keturah, was made primary; indeed, as between the two, it was her duty alone to support, care for and educate their son Harry. She obtained the right by such decree to Harry’s custody and services, and that right carried with it the duty and obligation to support and maintain him. Mr. Bishop, in his work on Marriage and Divorce, has cited the following among other cases: Husband v. Husband, 67 Ind. 583; Pawling v. Willson, 13 Johns. 192; Finch v. Finch, 22 Conn. 411; Fitler v. Fitler, 33 Pa. St. 50; and then he uses the following language:

. “The true legal principle applicable to cases of this kind seems to be, that the right to the services of the children and the obligation to maintain them, go together; and, if the assignment of the custody to the wife extends tp depriving the father of his claim to their services, then he cannot be compelled to maintain them otherwise than in pursuance of some statutory regulation. So where the court granting the divorce and assigning the custody to the wife makes, under authority of the statute, provision for their support out of the husband’s estate, he would seem, within principles already mentioned, to be relieved from all further obligation.” (2 Bishop, Mar. and Div., §557.)

ment, satisfied, Divorce — ali'ívorce — all-SeSt^ulg-' We think the decree rendered in the divorce case, giving the custody of the son to the mother, virtually, as between the father and the mother, but without reference to the father’s obligations to the son and to the public generally, relieved the father from all obligation to support and maintain his son, and east the burden of such support upon the mother. In other words, as between the father and the mother, it became the mother’s duty entirely by such decree to support and 'maintain their son, and therefore there was ample and sufficient consideration for the agreement entered into between the father and the mother that, if the father would take the care and custody of the son, she would relieve him from the payment of the $100 still remaining due and unpaid on the judgment rendered in the divorce case; and as the father did take the son under his charge and under such agreement, and has pap^ satisfie¿ and discharged, and therefore that continued to support and maintain him, we think the judgment for such $100 has been completely

the father should not be further harassed and molested by any attempt to enforce the same. As tending strongly to support this view, see the case of Walrath v. Walrath, 27 Kas. 395. See also Chandler v. Dye, 37 id. 765.

The judgment of the court below will be reversed, and the cause remanded, with the order that judgment be rendered upon the findings of the court below, as prayed for in the plaintiff’s petition.

• All the Justices concurring.