Robinson v. Robinson , 131 W. Va. 160 ( 1948 )

This is a certified case coming to us from the Circuit Court of Kanawha County. The demurrer interposed to the plaintiff's bill was sustained by the court below, and said court, on its own motion, certified its ruling to this Court.

The facts as alleged in the bill of complaint, and upon which the ruling of the court below was made, are as follows:

On August 26, 1943, in a suit then pending in the Court of Common Pleas of Kanawha County, Laura G. Robinson was decreed a divorce, from the bonds of matrimony, from W. E. Robinson; the custody of two children, James Edward Robinson, age eleven years, and Patricia Robinson, age thirteen years, was awarded to the plaintiff in said suit; and it was ordered and decreed "that the defendant (W. E. Robinson) do pay unto said plaintiff for said support and maintenance of said children the sum of $45.00 per month, beginning as of the date when plaintiff shall have established such home separate and apart from said defendant; and that such payments shall continue until the further order of this court". The sum so decreed for maintenance and support was paid monthly until the death of W. E. Robinson, in October, 1944.

W. E. Robinson died testate, and by his will dated November 20, 1943, disposed of his estate in the manner following: (1) the proceeds of a life insurance policy, in the sum of two thousand dollars, was bequeathed to his sons, R. W. Robinson and James Edward Robinson, and to his daughter Patricia Robinson, equally, and (2) "all the rest and residue of my property, real, personal and mixed wherever situate, including my business, I give, devise and bequeath to my son R. W. Robinson, charging the property included in this item II with the payment of my just debts".

An executor was not named in the will, and on its probate, on October 17, 1944, R. W. Robinson, the plaintiff herein, was, by the County Court of Kanawha County, appointed administrator with the will annexed of the said estate; and on October 8, 1945, the defendant, Laura Belle Robinson was duly appointed and qualified as guardian of the infant defendants, Patricia Robinson and James Edward Robinson.

At the date of the death of W. E. Robinson, he was the owner of certain real estate situated in the City of Charleston, consisting of a lot on Elk Road or Crescent Road, conveyed to W. E. Robinson and Mamie M. Robinson, his wife, the complete title to which became vested in W. E. Robinson on the subsequent death of his wife, under the provisions of the said deed; and a certain tract or parcel of land situated in upper Glen Elk Addition, Kanawha County, conveyed to W. E. Robinson and Mamie M. Robinson, his wife, by Paulina Smith and husband, in which complete title likewise passed to the said W. E. Robinson, upon the death of his then wife, both of said tracts of land having been conveyed to W. E. Robinson and Mamie M. Robinson, as joint tenants, with remainder in fee to the survivor.

Subsequent to the entry of the decree of divorce aforesaid, and on February 7, 1944, said W. E. Robinson executed a deed of trust on the first above mentioned tract of land, to secure the Charleston Federal Savings and Loan Association in the payment of the sum of two thousand dollars; and on the same day executed a like deed covering the second of the above mentioned tracts, to secure to the Charleston Federal Savings and Loan Association the payment of a note of fifteen hundred dollars; and it is alleged in the bill that neither of said notes has been paid in full, and that said deeds of trust have not been released. It is further alleged, that the plaintiff has been offered a fair price for one of the parcels of real estate, aforesaid, by one Thressa M. Mathes; that he has made a contract to convey same to her with a general warranty of title, subject to the approval by the Federal Housing Authority, and that said Authority has refused to approve the title to said real estate for the reason that said provision in said decree for the payment of forty-five dollars per month, aforesaid, constitutes a continuing lien on said real estate; and that unless said provision in said decree is cancelled and declared null and void, as sustaining a present lien thereon, plaintiff will be unable to dispose of said real estate at its fair value.

The bill in the cause was filed at December Rules, 1946, and on March 29, 1947, on motion of the plaintiff, the court appointed Jackson D. Altizer as guardian ad litem for the infant defendants; and he, as such guardian, on April 3, 1947, and in the name of his said wards, tendered and was permitted to file their joint demurrer to the plaintiff's bill setting up, as grounds therefore, the following:

(1) The decree of the Court of Common Pleas of Kanawha County, West Virginia, rendered on August 26, 1943, described in said bill of complaint, was a final decree not now appealable and by its terms and provisions the liability of the defendant in said cause, W. E. Robinson, and his estate for the maintenance and support of his infant children, Patricia Robinson and James Edward Robinson, became res judicata and can not be impeached or disturbed save by a bill of review or petition filed in the same court wherein it was rendered and the provision providing for the support of said infants can not be abrogated in its entirety until the youngest infant shall have attained the age of twenty-one years.

(2) The lien imposed by said final decree of the Court of Common Pleas is a valid and subsisting lien upon the real estate described in the bill of complaint and is in no sense a cloud upon plaintiff's title to said real estate, plaintiff having acquired said real estate by devise subject to any valid liens against the same existing at the time of the death of plaintiff's testator.

(3) The bill of complaint does not state grounds for the equitable relief therein prayed and is without equity.

(4) For other reasons to be assigned at the hearing of this cause.

On June 30, 1947, the Circuit Court sustained the demurrer aforesaid, with leave to amend, and on its own motion certified its ruling to this Court, stating the questions involved in the exact language in which they were stated in points 1, 2 and 3 of the said demurrer. On September 15, 1947 we docketed the case for hearing.

It is clear that the single question here presented is whether the force and effect of the decree for maintenance and support of the infant defandants, Patricia Robinson and James Edward Robinson, entered in the divorce proceeding aforesaid, on August 26, 1943, continued beyond the death of W. E. Robinson, against whom the decree operated. It is a question with which, in its stark form, this Court has not been heretofore confronted; and one the importance of which cannot easily be minimized.

The decisions of the courts of other jurisdictions on the question are in sharp conflict. In a note affixed to the case of Stone v. Bayley, Executor, (Wash.) 134 P. 820, 48 L.R.A. (N.S.) 429, it is stated that "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"; and in the first point of the syllabus to the main case it is held "an obligation assumed by a father in connection with a divorce, to contribute a certain amount per month towards the support of his child, the payment to continue during minority of the child, but to cease upon her earlier death, survives his death during minority of the child". It would appear, however, that in that case the father had, in addition to his common law liability, voluntarily assumed an obligation to support his child during its minority, which seems to have been carried into the decree entered in the case. That may create a different situation from that present in the case at bar, where there is no express provision that the payments involved should continue during the minority of the child, but only until further order of the court. However, in Miller v. Miller,64 Me. 484, custody of children was decreed to the mother, and the father was required to pay a certain sum quarterly for their support, until the further order of the court. It was there held, that, under the statute of that state, the court was authorized to make such a decree and to provide that it should continue in force after his decease, or until they were able to provide for themselves. This theory is also supported by Murphy v. Moyle, (Utah) 53 P. 1010; Creyts v. Creyts, (Mich)106 N.W. 1111; West v. West, (Mich) 217 N.W. 924;Smith v. Funk, (Okla.) 284 P. 638; Newman v. Burwell, (Cal.)15 P.2d 511. However, 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 children. A number of text writers support the theory that the death of the father, required by a court decree to support his children, does not necessarily terminate the allowance for their support, and state that it is generally held that his death does not terminate liability under such decree, unless otherwise provided therein, or by the agreement of the parties. See: 17 Am. Jur., Divorce and Separation, Sec. 706; Nelson Divorce and Annulment, 2nd Ed., Vol. 2, Page 100; 27 Corpus Jur. Sec. 323, page 1252; Schouler Divorce Manual, 1944 Ed., 506.

On the other hand, we have the well considered case ofBlades v. Szatai, (Md.) 135 A. 841, 50 A.L.R. 232, decided in 1927, in which it is held "a father is under a common-law obligation to support his child during the latter's minority without regard to a divorce decree prescribing the amount and to whom payable, unless it orders that the child be supported by another" and "a father's obligation to support his child during the latter's minority ceases at the father's death, no matter what the child's age may be, and his estate is not liable for payments accruing thereafter under a divorce decree". This decision is founded upon the theory that the common-law obligation of a father to support his child ceases upon his death, and that, upon that event, the interest of the child in his estate is based upon the statutory right of inheritance, where the father dies intestate, but subject, of course, to the right of the father to disinherit a child by the execution of a will; and upon the further theory that, to hold otherwise would be to disrupt the general theory of inheritance, prefer one child over another, and interfere with the common rules firmly established by statute law, governing the descent and distribution of the property of a decedent. To the same affect is the late case ofBarry v. Sparks, (Mass.) 27 N.E.2d 728, in which it was held, that where a decree was entered in a divorce proceeding, awarding the custody of a child to a third party, and ordering the father to support the child, then, upon the death of the mother, the divorce decree ceased to have further effect, where no provision was made for its continuance beyond the lives of the parents, and that the right of the father in relation to the custody of the child after death of divorced wife, was unaffected by the decree; and further, that upon the death of the divorced wife, the decree ordering the father to make payment to the mother to support a child whose custody was given to the third party, was no longer effective to deprive him of the right to the custody of his child, nor to relieve him from his common-law duty to support the child; and that the father then became entitled to the custody of the child, unless he was unfit, or the best interest of the child would otherwise require. In that case the wife died and the provisions of the divorce decree were held to be terminated. In the case at bar, the husband died, and by the same reasoning the effect of the decree of the divorce has terminated. The same reasoning must be applied to both situations. In the still more recent case of Guinta v. Lo Re, (Fla.) 31 So. 2d 704, it was held "Father's obligation under the divorce decree to pay stated amount per month for support of minor children terminated upon father's death, and decree was not enforceable against his estate for amounts accruing thereunder after death and during minority of the children". To the same effect is the case ofCarey v. Carey, 163 Tenn. 486, 43 S.W.2d 498, although that case does no more than hold that "The common law obligation of a father to support his minor children terminates with death; hence, a father's estate can not be charged with the support of his minor children after the date of his death". The two cases of Mansfield v. Hill, (Ore.) 107 P. 471, and 108 P. 1007, seem to hold that there must be a definite ascertainment of the amount of the decree. In the first case cited, it is held: "the provision of a decree of divorce for future monthly payments by defendant for support of wife and children, until the further order of the court, being for an indefinite time and amount not yet accrued, is not a definite liability or a judgment for a specific sum which may become a lien on his property". In the second case, it was held that "where a divorce decree awarded judgment for attorney's fees and costs, and also provided for future monthly payments for the support of children, it became a lien from the date of docketing as to the attorney's fees and costs, but not as to the monthly payments to accrue".

The authorities in other jurisdictions being in conflict, it remains for us to determine the rule to be followed by this Court. The expressions "it is generally held" and "the weight of authority", when applied to this controversy, assist us very little. In the first place, in determining what is the weight of authority on a particular question, we are no more required to base our finding on the number of cases, pro and con, bearing on the question, than to base a finding of fact on the number of witnesses testifying as to a disputed fact in the trial of an action of law. On the vital question here involved, we should consider the reasoning employed in the several cases cited, the probable consequences involved, and the effect of the principle adopted, on settled legal rights, including the rights of creditors of a decedent, whether based upon the decision of our courts, or the statute law of this State. With these considerations in mind, we have reached the conclusion that the principles laid down in the case of Blades v. Szatai,supra, should be applied.

In the first place, under our system of law, and going back to the common law, the obligation of a father to support his child during its minority is firmly fixed; but no one will contend that such obligation creates a lien against his estate. On his death, the only right in his estate possessed by a child is the right of inheritance under statutes existing at that time. A child has no vested right in any part of its parent's estate, and a person over the age of twenty-one years, owning property, may by will disinherit his or her child, and may dispose of property to strangers, subject only to the dower right of a wife, or husband in the real estate of a decedent, and the right to participate in the distribution of a decedent's personal estate. Code, 41-1-1; Code, 42-1-1; Code,42-2-1; Code, 43-1-1. If we should affirm the ruling of the court below, we will have made it possible to change the course of descent and distribution, in all cases where the owner of property dies intestate, and where he or she dies testate and attempts to divide an estate among children. This, it seems to us, is a result which should be avoided. Only the owner of property who dies testate, is permitted, under our system of laws, to discriminate among children and other heirs. Our statutes on descent and distribution provide against it. In our opinion it would be grave error to adopt a principle of law which would permit it. In the case at bar, the testator has seen fit to make a discrimination among his children. Not being acquainted with the motives prompting his action, we neither approve nor condemn; but even if he were wrong in what he did, it affords no justification for a ruling on our part which would permit the establishment of a rule of law under which inequalities might arise in the future descent and distribution of estates. The very fact of the granting of numerous divorces attended by decrees for alimony and for the support of children of a marriage, followed by remarriage of one or both of the parties, and the subsequent birth of children, brings into bold relief the difficulties which would be encountered were we to permit the children of the first marriage, through the force of a decree for support, to absorb the entire estate of a decedent, leaving children of the subsequent marriage penniless. A decree against a father for maintenance and support, adds nothing to his obligation to support his children during their minority; it only provides for the enforcement of such duty. The common law obligation already existing is one which, under all the authorities, ceases at the death of the father, and it does not seem to us logical that an order of a court for support of children, based as it must be on his common law obligation, should be given the force and effect of a judgment for payment of money, and creating a lien for money not due at his death. Of course, under such an order, accrued payments are a debt, and become a lien on the property of the person ordered to make the payments, but we do not think it becomes a lien in the sense that it may continue to accrue after the death of the person of whom payment is required. We know of no instance where a lien can be created against the estate of a person after his death. Death draws the line, and estates are settled and distributed according to the situation then existing. Conceivably, a lien such as is contended for herein could accrue over a period of fifteen or more years, during which time there would be no definite guide to determine the amount which might become due, the result of which would be to make difficult the transfer of property affected by such a lien. We think the safe and reasonable rule to apply, particularly as to the children, is to hold that a decree in a divorce suit, for the support of children, should have no effect beyond the life of the party liable therefor.

Then, the effect of the ruling of the Circuit Court on the rights of creditors should be considered. However unfortunate it may be for children, our law treats the rights of creditors as superior to any claim children may have for support, during their minority, out of the estates of their parents. Innumerable instances might be pointed out where the entire estate of a decedent has been applied to the payment of creditors, leaving children to the mercy of their relatives, or to reliance on public authorities for support. Under our statutes and decisions, the personal estate of a decedent is made the primary fund for the payment of debts. Where the personal estate is insufficient for that purpose, the real estate of the decedent may be subjected to sale therefor. Code,44-8-3, and 7. Should we adopt the rule contended for by the infant defendants in the case at bar, we will, in many cases, place the entire estate of a decedent beyond the reach of his creditors, and apply it to the support and maintenance of his children during their minority. We do not discuss the social question involved, but there simply is no law which would authorize such a procedure, and in addition to what has already been said, we think this feature of the discussion deserves most serious consideration.

We are not unmindful of the holding of this court in the case of Goff v. Goff, 60 W. Va. 9, 53 S.E. 769. In that case a divorce was granted to a wife, and permanent alimony decreed, payable annually. The decree for alimony was held to be a personal decree against the defendant husband, and a lien upon his real estate, even though such alimony was required to be paid in installments in the future. Also in the case of Hale v.Hale, 108 W. Va. 337, 150 S.E. 748, it was held that under the then existing statute "where a dissolution of marriage is decreed upon the application of a wife, the court may provide for alimony during the life of the wife". In that case the decree for alimony was for two hundred dollars per month "until further order of the court". In Goff v. Goff, supra, the order was that the wife be paid twelve hundred dollars annually for alimony "during the joint lives of the parties". Evidently it was not then believed that payments of unmatured alimony could be enforced out of the estate of a decedent. In the Hale case it was held that as a general rule the income of the husband should be taken as the basis for decreeing alimony, but recognized exceptions where there was large holdings of real estate, not income producing, in which the wife had an inchoate right of dower. It will be noted that in both the Goff and Hale cases, the holdings were based upon a decree for alimony, which presents a situation different from that existing where children are involved. Marriage creates in the wife the inchoate right of dower, and the right to participate in the distribution of her husband's personal estate, rights of which she can not be deprived, so long as the marriage relationship continues. But a decree of divorce from the bonds of matrimony ends that relationship and ends her right of dower and distribution, and this is always considered as a basis for alimony, in addition to that of the duty of a husband to support his wife. The first of these considerations was given great weight in the Hale case. There would be no great inconsistency in holding with the theory expressed in the Hale case, (although that question is not before the Court and we reserve decision thereon) and in adopting a different holding with respect to children.

But in view of our more recent decisions on the question, we doubt whether the rule laid down in the Goff and Hale cases should be applied as the settled law of this State, in respect to allowing liens to accrue after the death of a decedent against whom a decree for the payment of money in installments has been entered. We think it is settled that as to accrued alimony, the rule of the Goff case stands as established law; but we have not gone farther. In Holcomb v. Holcomb, 122 W. Va. 293,8 S.E.2d 889, we held: "Matured installments of permanent alimony stand as decretal judgments against the man charged therewith, and constitute a lien on his real estate under Code, 38-3-6, which makes every judgment for money a lien on the real estate of the debtor"; and we also held that "A woman who has been divorced from her former husband and awarded alimony by decree against him, may maintain a suit in chancery to enforce the lien of the decree respecting matured installments unpaid". It has never been held, so far as we know, that any character of proceeding could be maintained to collect or secure unmatured installments of alimony, nor such installments on a decree for the support of children. If there has been no fraud in the procurement of a decree for alimony, accrued installments thereof, are assignable and can not be cancelled.Biggs v. Biggs, 117 W. Va. 471, 185 S.E. 857; Harman v. Harman,120 W. Va. 199, 196 S.E. 361. In Korczyk v. Solonka, 130 W. Va. 211,42 S.E.2d 814, it was held: "matured installments provided for in a decree ordering the payment of specified monthly sums by a husband to his wife for the maintenance and support of their children, stand as decretal judgments against the man charged therewith and constitutes a lien on his real estate under Code, 38-3-6". So it is, that as to both a decree for alimony, and a decree to a wife for the support of her children, we have, by strong implication, limited recovery to matured or accrued installments, and have also held that a suit could be maintained outside the divorce suits to enforce collection of matured payments.

But it may be said that our holding operates, in effect, to set aside a decree of a court of competent jurisdiction, not appealed from, and now final. We do not believe that this contention, if made, can be sustained. The decree of August 26, 1943, was a personal decree against W. E. Robinson, to be performed by him, and based on a personal and legal duty to support his children. By that decree he was required to pay money, and, under Code, 38-3-6, it created a lien upon his real estate. But it was, supposedly, based, on his personal earning power, and not final in the sense that it could not be changed, for, by its terms, it operated only "until the further order of the court". If a change were to be made in the decree, it was, presumably, intended that it would be made in the lifetime of the person against whom it was rendered, and not after his death, when it could only affect the descent and distribution of his estate. We are not setting aside the decree of August 26, 1943, decreeing payments, but uphold it to the extent of payments that had matured thereon, at the date of the death of W. E. Robinson. We are merely interpreting its intended meaning, force and effect, at the time it was entered. It is not uncommon that litigation develops over a judgment or decree which has become final, and where a dispute has arisen over its interpretation and effect. Such a question is presented on this certification, and no setting aside or vacating a final decree is involved.

To sum up the whole matter, we are of the opinion that a decree in a divorce suit against a father, for the payment of money for the support of his children, becomes ineffective on his death; and that in the ordinary case, the same rule should apply to an alimony decree to a wife, though conceding that under the rule of Hale v. Hale, supra, situations may arise under which the Court would be warranted in decreeing alimony for the life of the wife. Holding these views, we reverse the ruling of the Circuit Court of Kanawha County, and remand the cause to that court for further proceedings.

Ruling reversed, cause remanded.