Blades v. Szatai , 151 Md. 644 ( 1927 )

I am unable to agree with the conclusion that there should be a reversal in this case.

It is provided by statute that the court shall "have power in all cases in which the care and custody of the children of parties forms part of the relief prayed whether a divorce is decreed or denied to order and direct who shall have the guardianship and custody of the children, and be charged with their support and maintenance and may at any time thereafter annul, vary or modify such order in relation to the children." Code, art. 16, sec. 39. It was said by this Court in Hood v.Hood, 138 Md. 355, 366, that the language just quoted "would seem to be broad enough to cover all questions concerning the care and custody of the children as well as their support and maintenance."

The chief objection of the appellant to the order charging the estate of the deceased father with the amounts decreed to be paid for the support of his son, for the period since the father's death, is based on the common law principle that the liability of a parent for the support of his minor child exists only during the parent's life. But, as said in Hood v. Hood, supra, the statute we have referred to "shows very clearly that when the custody and support of children are to be passed on by the courts, they are no longer to be necessarily governed by common law rules as to such custody and support." The theory of the decisions in such cases appears to be that, when the jurisdiction of a court is invoked for the dissolution of the marital union from which the parental relationship and obligation have resulted, the extent of the judicial authority to provide for the support of a child of the parties, during the period of minority, is to be determined by the language of the statute conferring the jurisdiction rather than by the rule of the common law.

In a note to Stone v. Bayley (Wash.), in 48 L.R.A. (N.S.), 429, where there is a collection of cases involving the question as to the effect of the father's death upon his liability, under the terms of a decree of divorce, for the support of his child, it is said: "This question usually arises, however, in cases of divorce where the mother is given the custody of the child, and the father is ordered to pay her a stipulated amount for its support, the general rule being that such an obligation created by decree of court does not terminate upon the death of the father in case he dies before the child arrives at majority, but survives his death." That statement is supported by the cases ofMiller v. Miller, 64 Me. 484; Mansfield v. Hill, 56 Or. 400;Murphy v. Moyle, 17 Utah 113; Creyts v. Creyts, 143 Mich. 375; and Stone v. Bayley, supra. In 9 R.C.L. 484, it is said that, according to the weight of the authorities, in cases where the father is required by a decree of divorce to make periodical payments for the support of his minor child, "the liability of the father is not necessarily terminated by his death, but may survive against his estate as to subsequently accruing instalments." The text of 19 C.J. 359, 360, is to the same general effect. The decisions in the cases cited were based upon the terms of the particular statutes which were operative in the respective jurisdictions. But in the view of this Court, as expressed in the language we have quoted from the opinion inHood v. Hood, supra, our own statute is sufficiently broad "to cover all questions" as to the care, custody, support and maintenance of the children of parties to a divorce proceeding.

In Miller v. Miller, supra, the Supreme Judicial Court of Maine said: "The question is whether a decree of this court made in a divorce suit, that the mother shall have the care and custody of 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 the 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." The divorce in that case was decreed because of the husband's misconduct, but that circumstance was not treated as controlling upon the question as to the scope of the jurisdiction which the statute conferred. In this case, the concern of the court for the child's future maintenance prompted the decretal provisions for payments to be made during the period of his minority or dependence. The estate of the deceased father is amply sufficient to satisfy all of his obligations, including that imposed by the decree for his son's benefit. But the will of the father excludes his son from any share in his estate, and if it is not charged with the payments decreed, the son will be left without the continuing support for which the decree intended to provide. If the father had been required by the decree to give bond for the payments therein specified, the liability thus incurred would clearly be an indebtedness with which his estate would be chargeable. Or, if the requirement had been that he pay a designated gross amount in weekly instalments during a stated period, it could hardly be doubted that the debt thus defined, or any unpaid portion of it, would be payable out of his estate. But the liability actually created by the decree is not essentially different in its nature from either of the obligations just described. In view of the purpose it was designed to serve, I do not think that it was extinguished by the death of the person upon whom it was imposed.

There is no proof in the case that the son, for whose benefit the payments under the decree were to be made until he becomes of age or self-supporting, is able to maintain himself without assistance. However, since his mother, into whose custody he was given by the decree, has failed to furnish any recent information as to his earnings, the order appealed from reasonably provided that no further instalments should be paid except upon proof that they were needed for the purpose to which the decree intended them to be applied. In stating that the decree, in its provision for the support of the child, should be a lien upon the estate of the deceased father, in the hands of the executor of his will, the order under review was not concerned with any question of priority, but simply declared the enforceability of the claim against the solvent estate in course of administration.