Assman v. Assman

NORTONI, J. —

This is a suit to recover the amount expended for the care, keep and education of defendant’s minor son. At the conclusion of the evidence the court directed a verdict for défendant and plaintiff prosecutes the appeal.

The parties are husband and wife. It appears they were married August 14, 1890, and separated May 15, 1900. They resided as husband and wife in St. Louis, Missouri, prior to their separation. It does not appear what occasioned the separation, but at any rate plaintiff removed to the State of New York, May 27, 1901, where she has since resided. At that time the minor son, Harry Robert, was about seven years of age. He resided at all times with defendant, his father, and in his house in the city of St. Louis. Although plaintiff and her husband remained separate, no divorce was ever granted either party. About February, 1906, when the minor son was aged thirteen years, plaintiff returned to St. Louis from New York and induced him to accompany her to that State. It appears that defendant was not consulted concerning this matter, and plaintiff admits in her testimony that she took the minor son into her custody without the knowledge or consent of defendant, his father, although a week later defendant sent the clothing of the boy to him to Brooklyn, New York, and wrote a letter urging him to be good to his mother. After having supported-the minor son for s-everal years in New York, plaintiff instituted this suit to recover from defendant, the father, the amount expended in his care, keep and education.

The court directed a verdict for defendant, in the view that, though the obligation to support the son devolved upon defendant, the father, in the first instance, it was' not enforceable in the circumstances of the case, at the suit of the mother, who was undivorced, for that she had voluntarily taken the child into her custody and removed him to a foreign State without the knowledge *682 or consent of the husband; and we are persuaded that the ruling was a proper one on the facts.

There can be no doubt that primarily the obligation to support the minor child rests upon the father, and on his failure or neglect to furnish necessaries for the support of the child according to the station in life, one who has done so may recover from the father accordingly. So it is that, where the father is at fault, as by abandoning the home, the wife may recover from him for such necessities as she has furnished the minor children during his absence, and this is true though he be divorced from her in a foreign State, even though the decree does not purport to award the custody of the children to either party. [See Rankin v. Rankin, 83 Mo. App. 335 ; McCloskey v. McCloskey, 93 Mo. App. 393 , 67 S. W. 669 .]

But here it does not appear that defendant father was at fault in the matter at all, and, indeed, no decree of divorce has been given either party. Presumptively, the defendant furnished a good home and all necessaries to the minor son. The parties stand as husband and wife, and while the primary duty of support rests upon the husband, as a corollary thereto he is entitled to the custody and earnings of the minor children as well, at common law. Moreover, under our statute (section 403, R. S. 1909) then in force, the father was the natural guardian of the child and entitled to its care and custody and to direct its education, though it may be otherwise now under the amendment. [See Laws of Missouri, 1913, p. 92.] It is therefore clear enough that, unless the father is at fault in some way, he is entitled to the care and custody of the minor children at his home, and a parent who is willing to support.his children at home is not bound to provide for them elsewhere, except where he has wrongfully driven them away, or at least assented to the mother’s taking or keeping them. [See Spencer’s Domestic Relations, section 493; 29 Cyc. 1610.]

*683 Here, it appears the father was furnishing the support to his minor son at his home in St. Louis — i. e., was performing the full measure of his obligation with respect to this child — when the plaintiff mother, after an absence of about five years, came on the scene unexpectedly and spirited the child away to a foreign State, without the knowledge and against the consent of the father. In such circumstances, she must be deemed to have voluntarily assumed the burden of its support, for defendant was in no wise at fault. [Glynn v. Glynn, 94 Me. 465 ; Fitler v. Fitler, 33 Pa. St. 50.] The mere fact that defendant sent forward the clothing of his child a week after he was taken to New York by the mother and wrote him a letter containing good advice is of no avail to show that he consented to the child’s being withheld from him, for while the law presumes the father will assert his right to the custody of his child in the courts, it does not require that he shall pursue it into a foreign jurisdiction for that .purpose. Neither does the fact that the father saw the child and talked to him on the street in Brooklyn, New York, avail anything here on that score. There is no evidence tending to show that the boy’s necessities were not supplied by his mother and there is nothing to indicate that the child would suffer if the father were not required to compensate this claim. Although the father is frequently required to compensate the wife for the support of the child while in her custody, rather than his, an implied assent to the mother’s withholding the child is usually found and asserted, on the ground that the father might invoke his remedy in the courts and obtain the custody of the child, if he is a proper person to have it. [McCloskey v. McCloskey, 93 Mo. App. 393 , 67 S. W. 669 .] But manifestly this doctrine is be-, side the instant case, for here, after an absence of about five years, the mother returned and took the child without the father’s knowledge or consent and bore it away to a distant State, beyond the jurisdiction in which he *684 resided and whose courts were immediately available to him. To permit the mother to recover in such circumstances without at least showing some special ground- — i. -e., as if the child were in want or likely to suffer for necessities in the future — would be awarding an advantage to her which accrued because of her own wrongful act.

The judgment should be affirmed. It is so ordered.

Reynolds, P. J., and Allen, J., concur.