Wedderburn v. Wedderburn

46 App. D.C. 149 | D.C. Cir. | 1917

Mr. Justice Robb

delivered the opinion of the Court:

That the court had jurisdiction in the original habeas corpus proceeding hardly will be questioned. See Code, sec. 1150. And the decision of the court in that proceeding awarding the custody and control of the child to the mother was res judicata, under the ruling of this court in Slack v. Perrine, 9 App. D. C. 128, 150, where the question was carefully considered and squarely ruled. See also Richards v. Collins, 45 N. J. Eq. 283, 14 Am. St. Rep. 726, 17 Atl. 831; Goldsmith v. Valentine, 36 App. D. C. 63, is not in conflict with the decision in Slack v. Perrine, for in the latter case the question was whether, under said section of the Code, the court possessed authority to award the custody of the infant to a person not a party to the proceeding. When, therefore, appellant filed his suit for divorce in Virginia he already had litigated in this jurisdiction the question of the custody of his child. This his petition for divorce fully recognized.

Appellant, in the circumstances, was bound at least to contribute toward the support of his child. Holtzman v. Castleman, 2 MacArth. 555; Rhodes v. Robie, 9 App. D. C. 305; Hard v. Splain, 45 App. D. C. 1; Dunbar v. Dunbar, 190 U. S. 340, 351, 47 L. ed. 1084, 1092, 23 Sup. Ct. Rep. 757. In the latter case the husband bad divorced his wife on the ground of desertion, but in the decree of the court the wife was permitted to retain the custody of the children, the husband entering into an agreement to contribute toward their support. The court said (p. 351) : “The contract to contribute a certain sum yearly for the support of each child during his minority was simply a contract to do that which the law obliged bim to do; that is to support his minor children. The contract was a recognition of such liability on his part.”

Demonet v. Burkart, 23 App. D. C. 308, and Thompson v. Thompson, 35 App. D. C. 14, 226 U. S. 551, 57 L. ed. 347, 33 Sup. Ct. Rep. 129, have no bearing upon the question here. In the former case the decree of divorce made no provision as to the custody of the child, but the wife voluntarily assumed such custody, and, ten years later, sought to have the court reopen the case and reimburse her, “as alimony,” in the sum she had expended for the support of the child from the date of the original decree until her remarriage. In the latter case the question determined was that a decree of divorce in Virginia in favor of the husband on the ground of desertion “forecloses any right of the wife to have alimony or equivalent maintenance from her husband under the law of Virginia,” and hence that she could not maintain an action in this jurisdiction to that end. 226 U. S. 567. Here there has been no attempt on the part of the wife to obtain alimony. She is merely undertaking, as the next friend of the child, to invoke the. aid of a court of equity in an effort to compel the father to fulfil an obligation which the law imposes upon him.

It appearing, therefore, that appellant was under legal obligation, at least, to contribute toward the support of this child, the question arises as to how that obligation may be enforced. It is generally recognized that, notwithstanding that the custody of children often is expressly provided for by statute, a court of chancery, independent of statute, has jurisdiction over such custody. Slack v. Perrine, 9 App. D. C. 153; Goldsmith v. Valentine, 36 App. D. C. 66; Bryan v. Bryan, 34 Ala. 516; Rossell v. Rossell, 64 N. J. Eq. 21, 53 Atl. 821; Cowls v. Cowls, 8 Ill. 435, 44 Am. Dec. 708; Leibold v. Leibold, 158 Ind. 60, 62 N. E. 627, 2 Story, Eq., Jur. 13th ed. sections 1341a—1343, 1346—1348. No good reason is perceived why a court of equity having jurisdiction of the parties and the general subject-matter should not afford complete relief. Unless such authority is exercised by the chancellor, the .only way in which the obligations of this father toward his child may be enforced will be by a suit at law, where the rules are rigid and inflexible, where little consideration may be given to the - surrounding circumstances of the parties, and where necessarily one suit must follow-another. We think it quite apparent that the relief afforded by equity will be much more comprehensive, satisfactory, and just than would be possible in a court .of law. And 'there is authority for the exercise of such, jurisdiction. Holt v. Holt, 42 Ark. 495; Luthe v. Luthe, 12 Colo. 421, 21 Pac. 467; Leibold v. Leibold, 158 Ind. 60, 62 N. E. .627; C,owls v. Cowls, 8 Ill. 435, 44 Am. Dec. 708.

Since the evidence upon which the. decree was founded- is not before us, we must assume that it supported the decree. Hines v. Hines, 43 App. D. C. 277. It follows that the decree must be affirmed, with costs. Affirmed.