Alvey v. Hartwig

Rogers, J., delivered the opinion of the Court. This is an appeal from the Circuit Court for Washington County. This case arose out of a foreign attachment against the defendant. The facts set forth in the record show' that the plaintiff and defendant were married in June, 1886, and in January, 1897, the defendant is alleged to have deserted his family, consisting of his wife and two minor children; that sometime prior to the 4th day of March, 1904, the plaintiff filed a suit for a divorce a vinculo against the defendant in the Circuit Court for Baltimore City, using the process of publication, the defendant then being a non-resident; that plaintiff’s bill of complaint specifically prayed for a divorce a vinculo and the custody of the children, and did not specifically pray for any other relief; that on the 4th day of March, 1904, the Circuit Court of Baltimore wherein said suit was brought, passed a final decree in the cause, granting unto the plaintiff a divoree a vinculo, and awarding her the care and custody of the two children, but was silent as to their maintenance; that before, ²⁵⁶ and since said divorce, she has supported said children, and expended certain sums for necessaries for them; that the defendant, although requested failed and neglected to support said children, and has refused to pay to the plaintiff the amount so expended by her.

The present proceeding is a suit between the parties to the decree of divorce, and the theory of the plaintiff is that by reason of the fact that the plaintiff has supported the children of the marriage, an implied contract arose in favor of plaintiff against the defendant to reimburse the expenses incurred thereby by the plaintiff after the date of the divorce. The contention of the defendant is that the law does not imply an obligation on the part of the defendant, to pay the plaintiff, for her support and maintenance of the minor children of the marriage, where she has obtained a divorce from him and has in the decree, been awarded the care and custody of such children; and the decree is silent as to the maintenance thereof; that the right of the parent to the services of the children and the obligation of maintenance of the same, devolving upon the parent are reciprocal rights and obligations. As this case presents a novel and interesting question for this Court’s determination, and will no doubt be of interest to the profession at large, we will give the proceedings in detail as presented by the record. This suit is brought to recover the sum of twelve hundred and twenty-three 99-100 dollars due and owing from the defendant to the plaintiff. 1.

For that the defendant is the father of two infant children, Richard Henry Alvey and Mary Virginia Alvey, and as such father is and always has been liable for their maintenance, support and education; and that the plaintiff, Ida M. Hartwig, was formerly the wife of said William Alvey, and is the mother of said children; and that about ten years ago, the said William Alvey wrongfully, without just cause, abandoned the plaintiff, who was then his wife, and abandoned his said infant children, and that since that time, he has utterly failed and neglected to contribute anything whatever towards the support of his infant children, though requested so to do; and that the plaintiff obtained a divorce from the said William ²⁵⁷ Alvey on or about the 4th day of March, 1904, the said divorce being granted by the Circuit Court of Baltimore City, the proceedings in said cause being had by publication against the defendant in the manner provided by law, and without any personal service of summons upon the said defendant, the said defendant being then a non-resident of the State of Maryland, and that the said Circuit Court of Baltimore City awarded the custody of said two infant children to the plaintiff, but that said Court was without jurisdiction at the time to require the defendant to pay for the support and maintenance of said infant chldren; and that the plaintiff, ever since the said William Alvey abandoned her has supported said children, and'has expended large sums of money for their maintenance and' education, and that the plaintiff has demanded payment of such sums but the defendant has refused to pay the same, and that the defendant is fully able to pay for the maintenance and support of said children, and that the defendant is liable to the plaintiff for the support of said children during all of said time, both before and after said decree of divorce, and that the amounts expended by the plaintiff were for necessaries reasonably suited to the needs and conditions of said children. 2. And for money payable by the defendant to the plaintiff for money paid by the plaintiff for the defendant at his request. To this a demurrer was interposed, which was overruled. The defendant then filed the following plea.

For-plea to the first count of the plaintiff's declaration the defendant, by his attorney, Says: That in and by the petition or Bill of Complaint, filed by the-plaintiff in the Circuit Court of Baltimore City, in the cause wherein the plaintiff obtained a divorce from the defendant,, the plaintiff prayed that the plaintiff be divorced a vincula matrimonii from the defendant, and also that the plaintiff have the guardianship and custody of the infant children of the marriage between the plaintiff and defendant, viz: Richard H. Alvey and Mary Virginia Alvey, — and thereafter on the 4th day of March, 1904, the Circuit Court of Baltimore City passed, in the cause wherein the said petition or Bill of Complaint was filed, as aforesaid, a decree in the words following to-wit: “This cause standing ready for hearing and being duly submitted, the proceedings were by the Court read and considered. ²⁵⁸ It is thereupon this 4th day of March, A. D., 1904, by the Circuit Court of Baltimore City, adjudged, ordered and decreed, that the said Ida May Alvey, the above named Complainant be and she is hereby divorced a vinculo matrimonii from the defendant, and the care and custody of the infant children, Richard Henry Alvey and Mary Virginia Alvey, be awarded the plaintiff. And it is further ordered, that the defendant pay the costs of this proceeding.” And the plaintiff has not expended any of the money,-herein sued for, for maintenance and support of said children prior to the 4th day of March, A. D., 1904. And for a second plea to the first count of the plaintiff’s, declaration, the defendant, by his attorneys, says: That in the cause filed in the Circuit Court of Baltimore City, wherein the plaintiff obtained a divotce from the defendant, as set forth in the plaintiff’s delaration, the plaintiff filed her petition or Bill of Complaint in the words following: 1. That on the 3rd day of June, 1886, she was married to her husband, William Alvey, in the City of Baltimore, with whom she resided in the cities of Washington and Baltimore, until the 18th day of January 1897. 2.

That though the conduct of your oratrix towards her husband, the said William Alvey, has always been hind, affectionate and above reproach, the said William Alvey has without any just cause or reason, abandoned and deserted her, and has not contributed to her support, or to the support of their children, and that such abandonment has continued uninterruptedly for at least three years, and is deliberate' and final, and the separation of the parties beyond any reasonable expectation of reconciliation. 3. Thht she had, by said marriage, two children, both of whom are still alive, and are infants, viz: Richard Henry Alvey, age 14 years, and Mary Virginia Alvey, age 12 years, and both .of whom are living with her. 4. That she has lived continuously in Maryland for the past seven years. To the end therefore, .1.

That your orat-rix may be divorced a vinculo matrimonii from the said William Alvey. 2. That year oratrix may have the guardianship and custody of the infant children of said marriage, viz: the said Richard Henry Alvey, and Mary Virginia Alvey. 3. That your oratrix may have such other and further relief as her case may require. ²⁵⁹ May it please your Honor, to grant unto your oratrix the order of publication, giving notice to the said William Alvey, who is a non-resident of this State, whereabouts unknown, of the object and substance of this bill, and warning him to appear in this Court, at some certain day to be named therein, and answer the premises and abide by and perform such decree as may be passed therein. And thereafter on the 4th day of March, 1904, the said Circuit Court of Baltimore City passed, in the cause wherein the said petition or bill of complaint was filed, as aforesaid, by the plaintiff, a decree in words following, towit: And the decree of the Circuit Court of Baltimore City is repeated.

And for a third plea to the first count of the plaintiff's declaration the defendant by his attorneys, says: That in and by the petition or bill of complaint filed by the plaintiff in the Circuit Court of Baltimore City, in the cause wherein the plaintiff obtained a divorce from the defendant, the plaintiff prayed that the plaintiff be divorced a vinculo matrimonii from the defendant and also that the plaintiff have the guardianship and custody of the infant children of the marriage between the plaintiff and defendant, viz: Richard H. Alvey and Mary Virginia Alvey, and thereafter on the 4th day of March, 1904, the Circuit Court of Baltimore City, passed, in the cause in which the said petition or bill of complaint of the plaintiff was filed as aforesaid, a decree divorcing the plaintiff a vinculo matrimonii from the defendant, and awarding the care and custody of the infant children, Richard Henry Alvey and Mary Virginia Alvey to the plaintiff. And the plaintiff has not expended any of the money, herein sued for, for maintenance and support of said children prior to the 4th day of March, 1904. To these pleas the plaintiff demurred and the Court sustained the demurrer. After which the defendant filed the general issue pleas, upon which issue was joined, and after trial by jury, and a verdict for $1,125, and a judgment on verdict for $1,125, the defendant appealed to this Court.

The record presents no bills of exceptions so that it does not appear from this record what any of the testimony below was, and we are not informed from the record whether the judgment was rendered on matters offered under the first count, the legal sufficiency of which is attacked and to which ²⁶⁰ certain special pleas had been overruled, or under the second count, the sufficiency of which was conceded. 1 The purpose of the appellant we presume in presenting his case in this manner is to have this Court review the action of the lower Court in overruling the demurrer to the declaration, and sustaining the demurrer to the special pleas, which were filed only to the first count of the declaration. The Code (1904, Art. 5, sec. 17) provides as follows: "Nor shall any judgment or verdict be reversed, if there be one good count in the declaration,” and again for aught we know the judgment might have been rendered by reason of matters offered under the second count, in which event any error of the lower Court in reference to the first count or the pleas thereto would be without prejudice to the defendant, and therefore not good ground for reversal. Terry v. Bright, 4 Md. 430 ; Huffer v. Miller, 74 Md. 454 . In Terry v. Bright , this Court had before it for review the sufficiency of the pleadings in an action of slander.

The declaration consisted of four counts, and it was contended that at least some of them were bad. The Court held that the first count was good and that therefore under the statute cited it was not necessary to consider the other counts. In Huffer v. Miller , the Court says : “We do not deem it necessary to discuss the question of the sufficiency of the counts, because the judgment below would not be reversed, even if they were defective. The third count in the declara-, tion is admitted to be good, and a judgment will not be reversed for any defect in form or substance in any count in the declaration, if there be one good count.” In the present case, if the demurrer be treated as to the whole declaration, then it was necessarily overruled, because of the one good count.

Willing v. Bozman, 52 Md. 63 ; Spencer v. Trafford, 42 Md. 15 ; Scott v. Leary, 34 Md. 401 . The Court overruled the defendant’s demurrer to the first count in plaintiff’s declaration and we have just shown, even if wrong in so doing, it would not be reversible error provided there was one good count. Surely then an error in sustain ²⁶¹ ing a demurrer to a plea to that one count is not reversible. YYe think the Court below was correct in its rulings both in overruling the defendant’s demurrer to the plaintiff’s amended declaration and sustaining the plaintiff’s demurrer to the defendant’s plea.

As the duty of a father to support his minor children lies at the root of the controvery in this case we will examine the law on that question first, for there is a difference of opinion in the Courts of various States as to this. In some the common law is interpreted as casting the burden of support upon the parents equally, and some casting it primarily upon the father, and only secondarily upon the mother. Chancellor Johnson in Thompson et al. v. Dorsey et al., 4 Md. Ch. Dec. 15 1, uses this language: “A father is bound to educate and maintain his infant children, and if another person perform this natural duty for him with his knowledge and consent, the father is liable to pay a reasonable sum to such person.” Chancellor Bland in Addison v. Bowie, 2 Bl. 585 , says, “A father is bound to maintain his infant children,