Brow v. Brightman

136 Mass. 187, 1883 Mass. LEXIS 205

Opinion

Colburn, J.

By the common law of this Commonwealth, the defendant, if of sufficient ability, was under obligation to provide for and support his infant child. Dennis v. Clark, 2 Cush. 347. If this case depended upon the common law liability of the defendant, under the facts found by the auditor, the plaintiff would doubtless be entitled to maintain her action. Reynolds v. Sweetser, 15 Gray, 78.

By the decree of this court in 1877, under the St. of 1874, c. 205, and the further decree in 1879, upon the libel for divorce, the care and custody of his child were taken from the defendant and given to the wife. With these decrees in force, he had no right, either to take the child and support it himself, or to employ any one else to support it, without the mother’s consent. The wife had no authority to bind the defendant by a contract for the support of the child, and no contract can be implied upon which the plaintiff can recover in this action. The remedy to secure such provision for the support of the child as the defendant might have the ability to furnish, was under a decree of this court, which it had ample authority to make, in either of the proceedings before it, as part of the original decree, or at any subsequent time. St. of 1874, c. 205. Gen. Sts. c. 107, § 33. Hancock v. Merrick, 10 Cush. 41. Burrows v. Purple, 107 Mass. 428.

Exceptions overruled.