Guinta v. Lo Re , 159 Fla. 448 ( 1947 )

I agree to the majority opinion and judgment in so far as it reverses the chancellor for transferring the cause to the law side of the court. In other respects I dissent. The controversy is between the second wife and the minor children of the first wife over the intestate estate of the father, Baldassaro Guiseppe Lo Re. Whether the estate is worth ten dollars or ten million dollars is not shown. The minor children of the first wife contend that they should share in its division by the terms of the divorce decree. The effect of the majority holding is to deny them any claim to the estate whatever. I am conscious of the rule of the common law that the obligation of the father to support his minor children terminates with his death, but the common law rule has been repudiated in this country more frequently than it has been followed. Whether followed or repudiated, it has little if any influence in formulating the controlling rule in this State.

In this jurisdiction, courts of equity are charged with the duty of protecting infants and incompetents, under the theory that they are wards of the Court. Turner vs. Andrews, 143 Fla. 88, 196 So. 449. Courts of equity have inherent jurisdiction to control and protect infants and their property. In England this was one of their most distinctive duties and is not impaired by statutory provisions. Duke v. Duke, 109 Fla. 325, 147 So. 588; Fisher v. Guidy, 106 Fla. 94,142 So. 717-721. In Davis v. Davis, 143 Fla. 282, 196 So. 614, we held that minors were wards of the Court, whose duty it was to promulgate such orders from time to time as seem best for their welfare. This being the philosophy that has moulded the law on the subject in this State, it matters not what the law may be elsewhere when divorce has shattered the family relation or severed the ties that bind it and minor children are left as wards of the Court, there certainly could be no support for a hard and fast rule that the father or his estate would under no circumstances be held responsible for the support of his minor children after his death. There may of course, be circumstances under which his estate would not be charged with their support, but if it is ample and the needs of his minor children require, the arm of equity may reach out and subject it to their support. The fact that the father, as in this case, was the one responsible for upsetting the family ties, adds force to this conclusion. If this is not the law, the responsibility of the Court to protect minors in such cases becomes a futile gesture and they become dependent on society.

In promulgating his decree, the chancellor should bear in mind that its objective is in no sense punitive as a recompense for family frustration, but is directed solely to the care and support of the minor children. For this reason his jurisdiction of the rem must be a continuing one that the decree may be modified from time to time to satisfy the needs of the infant within the scope of the father's ability and means to provide. The chancellor should be guided by the facts in the particular case but when a father leaves means, and minor children that are dependent, as between his estate and some form of charity, his children have the superior claim on his estate. Their welfare is the first consideration of the chancellor and Section 65.14, Florida Statutes 1941, affords him all the authority he needs to protect them.

I think that when a divorce decree against the father requires him to pay specified sums at a time stated, for the support of his minor children, he should not be discharged from such payments by his death, if the necessities of the children continue, and the estate of the father is sufficient to take care for their needs. If the father assumes other obligations in the nature of a second marriage, they are said to be subordinate to those he owes to support his children. 17 Am Jur. 536. It is inconsistent with the whole theory of our law that infants become charges on society if the parent has an estate that may be made available to them. Whether the parent is living or dead is not material. Society is not presumed to take over so long as the father's means are not exhausted. There is no suggestion of a will or any prior incumbrance on the estate, so any question that might be raised as to these is not before us, and as to them no opinion is expressed.

The foregoing conforms with current thought on the question and is supported by the following cases: West v. West,241 Mich. 679, 217 N.W. 924; Newman v. Burwell, 216 Cal. 608,15 Pac. (2) 511; Smith v. Funk, 141 Okla. 188, 284 P. 638; Mansfield v. Hill, 56 Oregon 400, 107 P. 471, 108 P. 1007; Stone v. Bayley, 75 Wash. 184, 134 P. 820; Murphy v. Moyle,17 Utah 113, 53 P. 1010; Miller v. Miller, 64 Me. 484.

I think the chancellor was in error and should be reversed, both as to his holding on the main question and as to that part of the final decree transferring the cause to the law side of the docket. I therefore dissent from the majority opinion and am authorized to say that Mr. Chief Justice THOMAS concurs in this dissent.

THOMAS, C. J., concurs.