Boggs v. Boggs

Offutt, J., delivered the opinion of the court. . Viola O. Boggs in November, 1914:, filed in the Supreme Court of the State of New York, in New York County, a bill of complaint against William D. Boggs, her husband, for an absolute divorce on the ground of adultery. In addition to asking for a dissolution of the marriagei, the complainant in that suit also asked for the custody of Thomas Brandon Boggs, an infant, the only child of said marriage, who was born April 18th, 1905, and that provision be made out of the property and income of the defendant for the support of the plaintiff and the said child, and for counsel fee and expenses. At the time that suit was instituted both parties were residents of the State of New York, and in due course the defendant was summoned to answer the complaint, but failing to answer or appear, an interlocutory judgment by default was entered against him on January 25th, 1915, and on May 21st, 1915, a “final judgment on default” was entered against him, after testimony had been taken in support of the bill.

In that judgment or decree, after reciting that the “defendant being fully in fault and a decision and interlocutory decree of divorce in favor of the plaintiff and against the defendant having been made on the 25th day of January, 1915,” and duly filed, and no subsequent order affecting it having been passed, the court dissolved the marriage and divorced the plaintiff from the defendant, allowing the plaintiff the privilege of remarriage but denying that privilege to the defendant without the court’s permission, and it further decreed that the plaintiff have the custody of the infant child Thomas Brandon Boggs, but allowed the 'father the privilege.of access to the child at stated periods. ⁴²⁵ During the pendency of this divorce proceeding and before tbe final decree, the parties to it entered into; an agreement “for the purpose of settling out of court the questions of alimony, counsel fees and the custody of said child.” This agreement provided that, in the event the provisions thereof were faithfully performed, the plaintiff’s motion for counsel fees and alimony should be withdrawn. The provisions referred to were in substance as follows: (a) that the defendant would convey for the benefit of the wife and son property in Bergen County, New Jersey, valued at $900, and (b) his interest in a certain agreement valued at $625, and (c) that he would pay for the benefit, of his wife $825, and (d) would return to her a diamond ring, her property, or a pawn ticket therefor and $200, or $400, the value of the ring. In consideration of these; provisions the complainant in the divorce suit agreed “to accept the same and to maintain and support herself and one child of said marriage until he is able to support bimself, and tbe said second party agrees not to make any further claim on tbe party of the first part for the support of herself or their said child, without, however, waiving the benefit of the provisions of Sections 1759 and 1771 of the Code of Civil Procedure, or any other law in such case made and provided.” In addition to what has boon set forth, the agreement also contained other provisions;, which need not for the purposes of this case he referred to further than to say that they related to the custody of the child, the separation of the parties, the enforcement of the terms of the agreement, and that it looked to, hut was not necessarily dependent upon, a dissolution of the marriage. It also provided that the complainant should have certain furniture, and that the defendant would indemnify the complainant against the payment of liens and charges owed by him on the properties conveyed to her, and that it was to be construed according to the law of the State of New York.

Some time after the entry of the final decree in the divorce case, the defendant William D. Boggs removed to ⁴²⁶ Maryland, where he appears to have remarried and, at the time of the institution of this suit, owned and operated a farm valued at some twelve or fifteen thousand dollars near Orumpton in Queen Anne’s County, which he appears to have paid for in part with money • received by him from his father’s estate after the divorce had been granted. Viola C. Boggs, the plaintiff in this case, continued to live-in Kew York, after she had been divorced from her husband, and for the purpose of supporting herself and her child she took employment as a clerk. The property she received under the agreement referred to- did not yield the amount at which it was appraised in the agreement, so that she actually received from the proceeds of a sale of it and in cash paid by her husband but $1,625 for tbe support of herself and her son. She had no productive property of her own and, her earnings being insufficient to support herself and child, she-applied the money received under the agreement to their support, and when that was expended she pawned her1 jewelry for the same purpose.

From time to time during this period. Mrs. Boggs made demand upon the defendant for financial assistance in the maintenance and education of their son and,, upon his refusal to- contribute anything for that purpose, she-sued him in the Circuit Court for Kent County for various-sums aggregating $1,738.78, which she claimed to have expended for the support and education of their infant son between May 23rd, 1915, and April 5th, 1919, in which case-the verdict and judgment were in favor of the defendant. Subsequently, on January 6th, 1920, she brought this action against the defendant for necessary expenditures made-by her for the maintenance and education of their infant son from April 6th, 1919, to January 6th, 1920. The declaration as amended is in assumpsit and contains the common counts in the usual form, and in connection with it there was filed a bill of particulars setting out in detail the items comprising the cause of action.

A demurrer to the war. as amended was interposed' and overruled, and the defendant ⁴²⁷ then filed three pleas in bar of the action. The first plea set up' the divorce proceeding to which we have referred; the seeond set up- the divorce proceeding together with the agreement to which reference has also been made, while the third plea set up the action and judgment in Kent County between the same parties in the following language. “That in and by a suit brought in the Circuit Court for Kent County, Maryland, Ko. 27 Trials, Apr. Term, 1919, in which Yiola C. Boggs, plaintiff, sued William D. Boggs, defendant, for the sum of $1,728.78 dollars for the maintenance and support of their infant from May 22, 1915, to April 5, 1919, a verdict was rendered for said defendant, and a judgment for said defendant entered thereon. And that said judgment was rendered on the same cause of action mentioned in the declaration, and still is a subsisting judgment.” The court sustained a demurrer to the first and third pleas and overruled a demurrer to the second plea.

The plaintiff replied to the second plea (1) that the agreement was invalid in so far as it related to the support of the child, (2) that it was not kept by the defendant, and (3) that the plaintiff had expended in the support and maintenance of the child all the monies received under it and that, since April 6th, 1919, she had been without means or money to furnish necessaries for his support, maintenance and education. (In referring to these pleadings, where the pleading first filed has been voluntarily amended, it is treated as an original pleading.) While the docket entries are somewhat confused, it is inferred that a demurrer was filed to this replication and overruled. The defendant then joined issue on it and filed the general issue as an additional plea, upon which the plaintiff joined issue. Upon the issues thus made a trial was had which resulted in a verdict and judgment for the plaintiff, from which the defendant appealed.

The record contains seven exceptions, one of which relates to a supposed disqualification of one of the presiding judges, ⁴²⁸ two to rulings of the trial court upon the prayers, one to the court’s refusal to permit counsel in his opening statement to “refer to the records in the case in Kent County” and to a remark of one of the judges sitting in the case made in connection with that ruling, while the others refer to matters-of evidence. The questions presented for our consideration by these exceptions, and by the several demurrers to which reference has been madei, may be thus stated: first, whether the appellee is estopped either by the decree in the divorce proceedings in the State of Kew York, or by her agreement made in connection therewith, from maintaining an action for necessaries actually supplied for the support and education of the appellee’s infant son; second, whether this case was, as a result of the action in Kent County between the same parties, res adjudicates, and third, whether one of the Judges who presided in that case was by that fact disqualified from presiding in the present case, and these questions we will consider in the order in which they have been stated. In proceedings for divorce where, upon the application of the wife, she is granted a divorce and the custody of the infant children of the marriage, but the decree granting the divorce makes no provision for their support, there is a sharp conflict in the decisions of the courts of the several States of the Union, as to- whether the father, from whose custody they have been taken, or the mother, into whose custody they have been given, is liable for such reasonable expense as is necessarily incurred for their support and education. One line of cases holds that a decree granting the mother the custody of the children, but making no provision for their maintenance, relieves the father of any further liability for their reasonable support, and this rule and the reasons upon which it is said to rest are very well -defined in Nelson, Divorce cured Separation, Par. 983, in which it is sad: “The father is not liable for the support of his children where the decree has granted the custody of the children to the wife and contains ⁴²⁹ no provision for their support.

There are several reasons for this. The statute having made it the duty of the court to provide for the custody and maintenance of the children on divorce, it will he presumed that the decree hasi made all the provision that was necessary. The decree is conclusive as to the mutual rights and obligations of the parties, subject to the right to have such decree modified as subsequent exigencies may require. The divorce makes the parties strangers.

The father is not liable to a stranger who furnishes the children with necessaries! unless under such'circumstances that a contract will he implied.” This view, however, is not in accord either with the weight of authority or thei trend of the later decisions, and is moreover, in onr opinion, opposed to a sound and just regard for the interest of society and the welfare of the children, who, while not parties to the proceeding, are, nevertheless, profoundly affected by its result. The primary liability for the support of the children during the marriage of the parents is imposed by the common law upon the father, and that obligation is by the statute in force in this State made imperative and mandatory. Art. 27, Sec. 75, Code Pub. Gen.

Laws. As a correlative incident of that duty the father at common law was entitled to the custody and to the services of the children he was required to support. These principles are so generally recognized that they may he assumed. But when the marriage relation is dissolved, and the custody of his children taken from the father, the question as to whether1 his obligation to provide for their reasonable support survives his loss of their custody is not so well settled.

Reason and the weight of authority say that it does, and that view was adopted by this Court in Alvey v. Hartwig, 106 Md. 254 . In that case the plaintiff sued the defendant, from whom she had been divorced in a proceeding, of which he was notified by publication, for necessaries furnished their children, whose custody had been by the divorce decree awarded to her. The defense1, as stated in the opinion, was:' “The contention of the'defendant is ⁴³⁰ 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.” In considering that defence the court in that case said: “As the duty of a father to support his minor children lies at the root of the controversy 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. 151, uses this language: ‘A father is bound to educate and maintain his infant children, and if another person performs 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, if able.’ “By the Act of 1896, Chapter 13, and 1904, Chapter 44, the wilful neglect to provide for the support of a minor child is also a misdemeanor punishable by fine or imprisonment in this State. “But in this case the appellant claims that even if that be the law in Maryland — and we think it is beyond dispute — that he, the appellant, is released from this obligation to support his infant child for the reason that his wife has obtained a divorce from him and has been granted the custody of said child. “Whatever may be the decisions in other states, and while there are undoubtedly conflicting opinions, we cannot give ⁴³¹ our assent to the position taken hy the appellant on this point. “Many courts of high authority have declared most emphatically that it is the duty of' the father to provide reasonably for tbe maintenance of his minor children, and that this liability is in nowise affected by the fact that the custody of said children may have been taken away from him by the decree of a court of competent jurisdiction. This primary obligation arises not alone from the husband’s common law right to his wife’s estate, but rather from his natural headship of the family, and upon his being by nature and the present constitution of society the bread winner and provider. The law also gives him the primary right to his children’s services and earnings-, which it could not in fairness do- if the mother were in the first place equally bound for tbeir support.

There may be and doubtless are many cases, where the right to the custody and services of the children are taken away from the father because of his misconduct. Ilis natural right to this qustody and these services is forfeited by his misconduct, and surely if his misconduct works a forfeiture of his rights- to custody and earnings, he ought not to he absolved from his natural and usual duty of supporting them. To allow* it to- bring about any such result, would simply be allowing the father to- take advantage of his own wrong, for all a father would have to do to avoid his natural obligation to his children would be to desert his family, conduct, himself in such a way as to show that he is an unfit person to have the custody of his children, and then, when on account of his own wrongful doings and unfitness, the court takes the custody of the children away from him, and awards; it to the mother, it relieves him of the obligation which the law of nature surd the law of the land places upon him.” It is true that in that ease, in referring to the contention made there that, since the decree awarding the custody of the children to the mother was silent as to support., the plaintiff was for that reason estopped from maintaining a suit against ⁴³² their father for such support because he had been deprived of their custody, the court used this expression, “as we view it, if the defendant had been summoned in the divorce case, it would be dear that the plaintiff would be barred in the case at bar,” but we cannot assume that by that language it was meant to decide that, where the defendant in a divorce case is summoned but fails to appear, and no provision is in'ade in the divorce decree for the support of the children, whose' Custody is given to the mother, that the liability for the 'children’s support becomes a litigated and adjudicated question, on the ground that the court had the power, had it chosen to exercise it, to have determined that question, because such a construction would be contrary to the rule stated earlier in the opinion, but the court must by that expression be understood to have meant that where in such cases the liability of the father for the support of the children has been a subject of actual litigation or controversy and the court under such circumstances has ruled in regard to it, that then all parties to the suit are bound by the decree', and that this is the proper construction is, we think, -clear from the following language, which occurs after the expression to which we have referred: “The doctrine of estoppel is that as between parties to an action each is bound by orders or decree passed with reference to subject matters over which the court had jurisdiction, but because the court may have been silent on some subjects, it will not be presumed to have gone into them all, and intended to pass judgment on points Upon which it was silent, and especially would this be true where the decree of divorce was based upon publication, and where the court which granted the divorce could not by any possibility have had jurisdiction to'compel the father to make an allowance for the support of the children.” These principles are in accordance both with the weight of authority and the trend and direction of the