Desch v. Desch

55 Colo. 79

• Court: Supreme Court of Colorado
• Decided: April 15, 1913
• Docket: No. 7898
• Status: Published

Opinion

Mr. Justice Gabbert

delivered the opinion of the court:

The law imposes upon the father the obligation to support his minor children to the extent that they are not capable of earning tbeir own livelihood. A decree of divorce at the suit of the wife, for his misconduct, which gives the custody of the children to her, but is silent as to their support, does not relieve him of this, obligation. If, in such circumstances, he refuses or neglects to support them, the mother may recover from him, in an original action, a reasonable sum for necessaries furnished by her for their support, after such decree, commensurate with Ms means and station in life. The law implies a promise on his part to pay her for necessaries to this extent.— Graham v. Graham, 38 Colo., 543, 88 Pac. 852, 8 L. R. A. (N. S.) 1270, 12 Ann. Cas. 137; Pretzinger v. Pretzinger, 45 O. St., 452, 15 N. E. 471, 4 Am. St. 542; Spencer v. Spencer, 97 Minn., 56, 105 N. W. 483, 2 L. R. A. (N. S.) 851, 114 Am. St. 695, 7 Ann. Cas. 901; Brown v. Brown, 132 Ga., 712, 64 S. E. 1092, 131 Am. St. 229; Lukowski v. Luhowski, 108 Mo. App., 204, 83 S. W. 274; Zilley v. Dunwiddie, 98 Wis., 428, 74 N. W. 126, 40 L. R. A. 579, 67 Am. St. 820; Gilley v. Gilley, 79 Me. 292, 9 Atl. 623, 1 Am. St. 307; Holt v. Holt, 42 Ark., 495; Plaster v. Plaster, 47 Ill., 290; Evans v. Evans, 125 Tenn., 112, 140 S. W., 745.

In the case at bar the decree of divorce was granted on account of the husband’s misconduct, and only directs that the mother shall have the custody of the child without any provision for its support. This did not impose upon the mother, as between the father and herself, the obligation to support the child, nor did it release the defendant from that obligation, but leaves that duty which the law imposes upon him subsisting and unimpaired. We are, therefore, of the opinion that the court erred in ruling that plaintiff could not recover for expenses incurred in supporting the child prior to the commencement of her action over and above the amount contributed by the defendant during that period. There are cases in which the opposite conclusion has been announced, but, unquestionably, our conclusion is supported by the majority of the recent decisions upon the subject.

An instructive review of cases pro and con on the question will be found in Spencer v. Spencer, supra, reported in 2 L. R. A. (N. S.), 851, and also in 7 Am. & Eng. Ann. Cases, 901. Both annotators find that the weight of modern authority is in accordance with our views. See, also, Alvey v. Hartwig, 106 Md. 254, 67 Atl. 132, 11 L. R. A. (N. S.) 678, 14 Am. & Eng. Ann. Cases, 250.

Counsel for defendant contends that section 3021 R. S. 1908, which provides that “the expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately” supports the ruling under'consideration. That section fixes the liability of husband and wife for family expenses to third parties, and is not applicable to any question involved in the case at bar. •

Graham v. Graham, supra, is also relied upon by defendant to support the ruling of the trial court. In that case the trial court only allowed the plaintiff to recover from the commencement of the suit. The defendant brought the case to this court on error. The plaintiff did not assign cross-errors, so that the question of limiting the recovery from the time the action was commenced— that is, denying the right of plaintiff to recover for expenses incurred prior to the commencement of the action, was not involved.

The judgment of the District Court in ruling that plaintiff could not recover the expenses incurred by her for the support of the daughter prior to the commencement of her action is reversed, and the cause remanded with instructions to try that issue, and render such judgment thereon as the testimony warrants. The judgment, in so far as it is in favor of the plaintiff, is not disturbed.

Judgment Reversed in Part and Ccmse Remanded ivith Directions.

Chief Justice Musser and Mr. Justice Hill concur.