Citation Numbers: 16 Del. 439
Judges: Cullen
Filed Date: 9/15/1895
Status: Precedential
Modified Date: 7/20/2022
delivered the opinion of the Court.
This is an application, under the Act of Assembly, for the benefit of Married Women and Minor Children, passed at Dover, the 13th of April, 1887, for an order on William B. Rogers to support and maintain Beauford McKean Rogers and Jeanette Girard Rogers, his children.
The question arising in this ease involves a construction of the Act of Assembly, which for the first time is presented for the consideration of this Court. To do so it becomes necessary to state the facts involved.
The said William B. Rogers and Bettine Rogers, on whose information or complaint this proceeding was brought under said Act of Assembly, were at one time husband and wife, legally married, and as such lived together, and during such marriage, the said two children, above named as minors, were born; and as husband and wife they continued to live together until a short time before the application to the Legislature, after which time they lived separate and apart.
The question presented for our decision is whether the said William H. Rogers is bound to pay such sums as the said Court shall think reasonable and proper for the comfortable support and maintenance of said children under the above state of facts.
The counsel for the defence contends, that though admitting the general liability of the husband while the marriage tie exists-to support the children, yet the said relation of marriage having been legally dissolved by said Act and under the provisions of said Act, the custody and care of said children having been given to the wife, the husband is no longer bound to support them since he is-wholly deprived of the society and benefit of their services, on which rests his common law right to support.
It is further contended by. the defence that the liability to-support the children though devolving on the father while the marriage relation exists, yet in case of divorce the liability is mutual and both alike are bound to support them in case of a dissolution of marriage by either a decree of a Court, or Act of Assembly. That the wife having applied for and obtained a divorce from the bonds of matrimony and in the same Act the children having been placed in her custody, she is estopped and has no right afterwards,, having their custody and care, to demand support of the father, from whom by her own act she has sought and obtained a final separation and deprived of the care and custody of his children.
It is further contended by the counsel for the defence that the-said Act of Assembly does not apply to cases of this kind.
In this connection we may say that all the cases cited have really no application to the one before us, since they are founded on actions for support and maintenance previously furnished.
As stated, parents are mutually bound to support their children, but at common law no suit could be had until a right in some one existed who had done that which it was the parents’ duty to perform, but our statute provides not for the past, it is cumulative to, and makes a provision not recognized by, the common law, a provision for the future support of children. We think this statute is clear and unambiguous as to its intent and meaning, and that under its provisions, the said William H. Rogers is bound to pay such sum as may be ordered by this Court for the support of his minor children.