Morris v. Birmingham

Callahan, J. The main ground urged for dismissal is that there is an existing judgment by a court of competent jurisdiction determining the merits of the present controversy and that the Municipal Court had no jurisdiction of the subject-matter of the action. Plaintiff and defendant were formerly husband and wife. There are two children of the marriage who are minors. On October 14 1930, plaintiff obtained a divorce from defendant in the State of Nevada, the defendant appearing in the action in said State. Prior to the entry of the decree in Nevada the parties had signed a separation agreement whereby the defendant agreed to pay the plaintiff forty dollars a month for the support of herself and children until she remarried or died. This agreement also provided for the right [629] of visitation to the children by defendant. The provisions of this agreement were incorporated in the decree of divorce in hcec verba. Plaintiff remarried on October 20, 1930. Thereupon defendant ceased all payments to plaintiff. Plaintiff brings the present action to recover $470.71, which she claims she expended for necessaries for defendant’s two children between July 1, 1930, and April 25, 1931. It is apparent that neither the separation agreement nor the decree of the Nevada court make any provision for the support of the children after the remarriage of the wife. It is our opinion that because of that fact the plaintiff has the right to maintain this action at least as to necessaries expended after her remarriage. The reason for this is that the foreign decree made only partial provision for the support of the children, to wit, until the time the plaintiff remarried. We take it that the principle enunciated in the case of Laumeier v. Laumeier (237 N. Y. 357) applies here. There the action was brought by a divorced wife against her former husband to recover moneys spent for the support of their child. The child was born after issuance of the foreign decree. The Court of Appeals held: “ An action brought by a divorced wife against her former husband to recover money spent upon the maintenance, support and education of their child is not brought to recover money for herself but, in reality, is brought for the benefit of and in behalf of the child who is entitled to support and maintenance by its father. If the father fail to support his child and furnish the necessaries to keep it alive, that is, fail and refuse to give it a home, food and clothing, education and medical attendance, these may be furnished by others and the father will be held hable. The wife may recover the reasonable amounts which she has thus expended. * * * “ That the foreign courts may have jurisdiction to modify their decree so as to provide for the changed condition of the parties or or to provide for after-born children does not affect the plaintiff’s cause of action. Nothing that the foreign courts may do can constitutionally wipe out the obligation existing in favor of the wife and against the father for the past support of his child.” The principle thus enunciated appears to be that the plaintiff’s right to suit here is a derivative one based on the rights of the children to support by their father. Clearly, where the decree of the foreign State made no provision to cover a situation that was likely to and did develop, it was only a partial decree concerning support in no wise covering the rights of the children after their mother’s remarriage. In the Laumeier case the court cited with approval the case of Bennett v. Robinson (180 Mo. App. 56). In the latter case the [630] child was born prior to the issuance of the foreign decree and in fact its custody was awarded to the mother by that decree. Nevertheless, an action of the present character was held maintainable in view of the fact that no provision for the support of the child was contained in the decree. Likewise, in the case of Manice v. Randolph (221 App. Div. 570) it appears that the child was born before the decree. An examination of the record on appeal shows that the child was eight years of age at the time of the divorce. The decree of the foreign State awarded custody of the child to the mother but contained no provision concerning support. The court upheld the right of the mother to sue for a sum expended for necessaries for the support of the child. (See, also, Dumay v. Dumay, 217 App. Div. 773.) If the foreign decree in the present case contained any provision with respect to the support of the children after remarriage such decree would be binding on this court and a bar to the present action. In our opinion, however, in view of its silence on this subject, the present suit may be maintained. Order affirmed, with ten dollars costs.