Edelman v. Edelman , 65 Wyo. 271 ( 1948 )

OPINION A petition for rehearing has been filed in this case. As so often happens in such matters, arguments are reiterated to which we have, prior to announcing our conclusions and the reasons therefor in the opinion on file herein, given careful consideration and have felt obliged to reject. Counsel for appellant insists that his interpretation of the law on the question whether a divorce decree directing that a husband should pay a certain sum per month to the wife for the support of a minor son of the parties "until the further order of the court" terminated on the death of the husband and did not operate as a proper claim against his estate, should be adopted by this court rather than those interpretations announced by the editorial writers on the point in L.R.A., N.S., A.L.R. and Am. Juris. and the appellate court decisions we have cited. But our examination of the case law on these points has led us to the conclusion that we should agree with them and not with him.

Counsel lays stress on the fact that in some of the cases cited in the original opinion herein, the court order operated to establish a lien upon the husband's property or a bond or security was given by the husband to secure the payment of support money for his minor child. It was pointed out in the quotation made in the original opinion from the case of Newman vs. Burwell, 216 Cal. 608, 15 P.2d 511 that "both upon reason and authority that the existence of security is neither a controlling circumstance nor an essential prerequisite to a determination of the continuing character of the decedent's obligation" and also that as said in Stone vs. Bayley, 75 Wash. 184, 134 P. 820 "it can hardly be contended that if there was no continuing debt there could have been a continuing lien". In Miller vs. Miller,65 Me. 484, we find the court saying:

"The question is whether a decree of this court, made in a divorce suit, that the mother shall have the care and custody of the minor children, and that the father shall pay a certain sum quarterly towards their support, which by its terms is to continue in force till the further order of court, is discharged by the father's death.

"We think it is not. The statute conferring jurisdiction in such cases is very comprehensive. It authorizes the court to make such a decree as the circumstances require. If, from hostility to the mother, or other cause, there is danger that the father will disinherit his children, and thus leave them to be supported by their mother without any aid from his estate, a decree may very properly be made for their support that shall continue in force after his decease, or until they are of sufficient age to provide for themselves; or at least till the further order of court. And if there is danger that the father will squander his property, or convey it away, so that none will be left for the decree to operate upon, he may very properly be required to give security."

These views the Supreme Court of California in the Newman vs. Burwell Case supra not only approved but followed.

Counsel insists that the case last mentioned was an "equity action" in California and that that fact makes it distinguishable from the case at bar. He evidently has overlooked that since prior to statehood there has been a Wyoming statute in existence reading:

"The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing are abolished, and in their place there shall be hereafter but one form of action, which shall be called a civil action." Section 3-301 W.C.S. 1945.

In such an action both equitable and legal principles alike are given effect as the facts may require. Novosel vs. Sun Life Assur. Co., 49 Wyo. 422, 55 P.2d 302.

The case of Robinson vs. Robinson, ___ W. Va. ___,50 S.E.2d 455 has come under our notice. The opinions therein have been made available for examination and study in the advance sheets of the Southeastern Reporter, Second Series, No. 5 under date of December 30, 1948. The majority opinion appears to have approved the ancient, severe, and unsuited to modern life, common law view that no duty can be imposed even by court decree as in the case at bar, upon a deceased father's estate to support his minor child. The opinion of the majority of the court in the Robinson case advances no new reasoning and which was not before us when the original opinion herein was prepared and filed. Referring to some of the decisions which have reached a conclusion opposed to its views and in an evident attempt to distinguish them, the majority opinion states: "Some of these cases are apparently based upon voluntary contracts entered into by the husband and carried into the decree granting the divorce and custody of the child." If that fact constitutes a distinguishing element, then the case at bar is distinguished from the Robinson case for we pointed out in the original opinion that it was alleged in plaintiff's petition and admitted by defendant's demurrer thereto, that the decree of divorce was "rendered in accordance with an express agreement between the said parties to the action (for divorce) and said monthly payments to continue until further order of the court". However, as indicated in the dissenting opinion in the Robinson case, it seems to have been overlooked by the majority that in that case, too, the voluntary agreement of the husband and father to pay support money for the children was "recited in and `carried into' the decree of" the court of common pleas.

The Robinson decision appears to be in large measure rested upon the reasoning and views expressed in the cases of Blades vs. Szatai, 151 Md. 664, 135 A. 841 and Guinta vs. Lo Re, ___ Fla. ___, 31 So. 2d 704. Concerning these cases and the majority opinion in the Robinson case, the dissenting opinion therein has this to say:

"The Blades case and the Guinta case, however, seem to be applicable to the case at bar, and they adopt the minority rule. The decision in each case was by a divided Court. In the Blades case, one judge of the five judge Court dissented; and in the Guinta case four judges concurred in the majority opinion and the chief justice and one judge dissented. Those two cases, adhered to by the majority, in the face of the applicable statutes of this State, are contrary to the prior decisions of this Court, the views expressed in standard treatises and texts and the clear weight of authority of decisions of the Courts of last resort in other jurisdictions, to all of which I have referred and from a number of which I have quoted at length; and to me they appear to constitute the feeble and ephemeral legal foundation upon which the conclusion of the majority in this case is based. It has based its holding, not upon the rock of sound judicial pronouncements of this Court, and numerous courts of recognized standing in other jurisdictions, which constitute the decided weight of authority, but upon the sands of a small minority which is divided within its own ranks."

We are convinced that the views expressed in the original opinion are both sound in law and the results reached are just and fair on the facts. The petition for rehearing should be denied.

Rehearing Denied.

KIMBALL, J. and BLUME, J. concur.