169 Mo. App. 40 | Mo. Ct. App. | 1913
This suit was instituted in the circuit court of Henry county in December, 1911, by
Defendant demurred to the petition on the grounds that “the court has no jurisdiction of the subject of the action,” that “plaintiff has no legal capacity to sue,” that “there is a defect of parties plaintiff,” and that the petition “does not state facts sufficient to state a cause of action.” The demurrer was overruled and defendant answered pleading defenses the nature of which will be disclosed in the questions of law we find it necessary to discuss and determine. A jury was waived and after hearing the evidence the court rendered judgment for plaintiff in accordance with the prayer of her petition. Defendant appealed.
• The material facts of the case are as follows: The parties were married in Jackson county, Missouri, De
It does not appear that plaintiff ever attempted to conceal the whereabouts of the child from defendant or that defendant ever made any effort to discover where his child was living or to recover possession of her. Apparently he has been willing that the child should remain with her mother as long as her mother supported her.
This is not a case such as that of Libbe v. Libbe, 157 Mo. App. 610, where the wife brought an action at law against her husband during’ the pendency of the divorce suit to recover her expenses in supporting a minor child incurred after their separation. We held in that case that such issues were involved in the divorce suit and could be raised only in that proceeding. In the present case the alleged cause of action arose after the final determination of the divorce action in which, owing to the fact that both defendant in that
The judgment in the divorce suit did not determine issues pertaining to the custody and support of the infant and, therefore, is not a bar to the maintenance of the present action.
Since these issues were not involved in the divorce suit, the defendant cannot be said to have acquiesced in his wife’s custody of the child from the mere fact that he did not seek to have his right of custody determined and enforced in that action, but we are moved to say from a careful consideration of the whole case as disclosed by the record, that the allegation of defendant in his answer that he is ready, able and willing to support the child if he can have possession of it, is not made in good faith but for the mere purpose of interposing a defense to plaintiff’s demand. In the first place defendant must be held to have known when he filed his answer that the issue of his alleged right to the custody of the child could not be inquired into and determined in the present action which, as stated, is a suit at law in the nature of assumpsit to recover a debt created by operation of law from the performance by plaintiff of a duty imposed by law on defendant. If defendant was unjustly deprived by plaintiff of the custody of their child he had his remedy which he could have had enforced in an appropriate action. He
On the other hand it is argued by defendant that, since the destruction of the marital relation was caused by the misconduct of plaintiff and since the removal of the child from defendant to another State was an additional wrong committed by plaintiff, to allow her to recover compensation for services already performed and which were rendered in the perpetration of wrong, would be obnoxious to the most elementary principle of justice which precludes a wrongdoer from maintaining a cause springing out of his own culpable acts.
In the case of Fitler v. Fitley 33 Pa. St. 50, the
“Her reliance is on a constructive or fictitious contract, adopted by the law for the purpose of sustaining an action of assumpsit where a duty to pay arises out of the facts. [29 State R. 467.]
“Then the question is, what legal duty has the defendant violated in relation to this child or its mother? Did he wrong the mother by gratifying her wishes, and suffering he.r to keep their child which she had wrongfully carried off. Certainly not. A wrongdoer cannot complain that the injured party did not resist or seek redress. She cannot complain of the expense of being allowed to have her own way. This cannot be made plainer. Kindness to the mother’s feelings for her son cannot be enforced by law; and when it is exercised, it cannot be made the ground of a legal duty to do more. We must treat her as in the wrong, because the divorce, at his suit for her desertion, must be taken as proof of it.
“Did the father wrong the child by not resisting the mother’s wishes? Yes, if thereby the child was left without support, which is not the case. But to this the mother is the principal party; and how can she make her own wrong against another the ground of an action against him? She is claiming compensation for-her own services and outlays, all growing out of a wrong done by her to him against whom she makes the claim. This cannot be allowed. The father is willing to take the child and support it himself. If she prefers to keep it, she can claim nothing from him as a right; and we cannot enforce the duty of generosity.
“When a man abandons his child and casts it upon the public, he becomes liable for its support. But it
To the same effect is the ease of Fulton v. Fulton, 52 Ohio St. l. c. 240, where the Supreme Court of Ohio say:
“Although the separation and divorce were caused by the misconduct of the mother, it may nevertheless be true that the obligation of the father to reasonably provide for his children will follow them into the custody of the delinquent mother, when circumstances require them to be placed in her custody. If, however, under such circumstances, it does so follow them, the reason and limit of this obligation of the father should be found in the necessities of the children. As to them, the natural obligation of protection, nurture and maintenance, press with equal force upon the parents. By the divorce a vinculo, the mother is as completely absolved from the marital relation as she would be by death, and, if, in the course of the proceeding which ends in an absolute divorce, the minor children are put under her control, by her procurement or in response to her wishes, her direct obligation towards them so long as she retains them would seem to be founded upon as substantial considerations as if she were a widow. Their daily wants must be satisfied. Constant •supervision may be necessary. Can their divorced mother, who has received them into her custody, abandon them in the one case and not in the other? We think not. By receiving them into her custody she should be held, as to them, to assume the obligations incident to that custody. If, under these circumstances, where her own misconduct has destroyed the family relation, and deprived the father of the custody and society of his children, she has in fact maintained her
The Supreme Judicial Court of Massachusetts in Baldwin v. Foster, 138 Mass. 449, appear to entertain the view of the law expressed in the opinions from which we have just quoted.
In all of these cases the generally accepted rule is acknowledged that the primary duty of supporting minor children is on the father and that such children who, of course, cannot be regarded as participating in the misconduct of either parent should not be deprived of the benefit, of a proper performance by the father of his primary duty towards them by the fortuitous circumstance that their erring mother has them in custody and will not surrender them to the innocent and injured father. As we understand the facts in the cases considered by the Ohio and Pennsylvania courts, there was no substantial difference in the means of the respective parents.. The wife was able to and did support the child in a manner suitable to its rights and was able to continue such support. The contests in those cases, therefore, appeared to be confined solely to the rights of the parents and as unaffecting the substantial interests and welfare of the child. We are loath to believe that either court would hold the wife could not recover for past services where it appeared that the welfare of the child demanded that her ability to give it suitable care and support in the future should be increased by means of the father’s contributions, whether made in the form of payment for past services o.r as advances for future use. That a child suffered by its affluent father to remain in the custody of its divorced mother and through her poverty compelled to endure unnecessary hardships and deprivations must be condemned to continue in a state, of exist
In this State the courts repeatedly have recignized the rule that the custody of a minor child may he awarded to. the mother and the father still be compelled to defray the expenses of its reasonable maintenance and education and it is said in Biffle v. Pullam, 114 Mo. 50:
“In case of a divorce in which the custody of the children is awarded to the wife, and provision is not made for their support out of the property of the husband, he still remains liable for their support.”'
In Rankin v. Rankin, 83 Mo. App. 335, the St. Louis Court of Appeals considered a case very similar to the one at bar. The husband and father moved from this State to Texas and afterward obtained a divorce in that State on the ground that his wife had deserted him. He allowed her to retain the custody of their minor children and she reared and educated them out of means produced by her own labor. Afterward she brought a suit at law against him for reimbursement. Our sister court held she was entitled to recover on the broad ground that since the father neglected to assert his right to the custody of the children, such neglect did not absolve him from liability for the charges incurred by others in the necessary maintenance of his offspring. We quote from the opinion:
“The father is also made, by statute, primarily the guardian of his children and charged with the care of their persons, education and estate. [Rev. Stat. 1899, sec. 3478.] The neglect of this statutory duty in no way relieves him from the charges incurred by others in the necessary maintenance of his offspring. The divorce from his wife, does not divorce him from his children. The future wefare of his children is the
Subsequently the same court in the case of McCloskey v. McCloskey, 93 Mo. App. 393, reaffirmed the Rankin case. The court discuss and reject as unsound the doctrine of the cases in Pennylvania, Ohio and Massachusetts to which we have referred and hold that “the mere fact that the children stay with the mother, either voluntarily or by decree of court, is deemed insufficient to exonerate the father from his duty to provide for them.” Speaking of the decision in the'Rankin case the court say: “We regard the rule therein recognized as the better and wiser one and are unable to' see any sound objection to it — unable to see why a father should not support his helpless offspring because he is no longer married to or living with their mother. If he is entitled to their custody, which is .denied him, he has an ample remedy to enforce his
"We cannot give our assent to the doctrine thus broadly stated by our sister court. We do not entertain the view that a wife divorced on account of her misconduct has an unqualified legal right to compel the innocent husband to compensate her for expenses incurred by her in the support of their minor child whose custody she is suffered to retain. As between her and her injured husband, she can have no right born of her own wrongful conduct. The only right she may -enforce is one derived from the natural right of their minor child whose interests the law will not allow to be unnecessarily impaired by the misconduct of either parent. If out of her own means she can maintain the child in a state equal to that the means of the father would permit, she has no recourse on him. The benefits she. receives from the society and services of the child are compensation enough and she should not be allowed to enjoy the benefits of a relation so close and sacred and to cast its burdens on the father whom she has wronged. But where, as here, the means and ability of the mother are disproportionate to those of the father, the welfare of the child which always' is the paramount consideration, demands the aid of the father and clothes the mother with a borrowed right unaffected by the taint of her own wrong. To permit plaintiff to recover in this action will be to give hex the means with which to better the condition of defendant’s child. Should we deny her the right of recovery, we would hold in practical effect that the child must be deprived in the future of benefits to which it is en