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Cohen v. Markel

Court of Chancery of Delaware, New Castle County

February 23, 1955

Muriel COHEN, Muriel Cohen, next friend of Diane Lea Markel, Plaintiffs,
v.
Adolph MARKEL, Jr., Defendant.

Suit by mother individually and on behalf of infant daughter against father to recover sum spent by mother for support of child after termination of support agreement between mother and father and for order directing father to support his child in the future. The Court of Chancery, in and for New Castle County, Marvel, Vice Chancellor, held that statute providing that Superior Court in any cause of divorce may make such order for care and maintenance of children as is just and reasonable and may from time to time revise and change such order did not divest Court of Chancery of jurisdiction to decree support for minor whose parents obtained divorce in Superior Court but whose maintenance was not provided for in divorce decree, such having been temporarily provided for by agreement of parents prior to divorce.

Father's motion to dismiss complaint denied.

In suit by mother individually and on behalf of her infant daughter against father for recovery of money spent for child's maintenance after termination of support agreement between mother and child's father and for order directing father to support child in future even though court would not have jurisdiction were claim only for money spent by mother for maintenance of child, court would, when it had jurisdiction of claim for future support of child, assume jurisdiction of entire subject under litigation in order to avoid multiplicity of suits.

H. Albert Young and Clement C. Wood of Young & Wood, Wilmington, for plaintiffs.

David B. Coxe, Jr., of Coxe, Booker & Walls, Wilmington, for defendant.

Page 703

MARVEL, Vice Chancellor.

Muriel Cohen brings this suit individually and on behalf of her infant daughter, Diane Lea Markel, [35 Del.Ch. 116] for the support of the latter who is the only child born of the former marriage of Mrs. Cohen and the defendant. Defendant is a resident of New Castle. Diane lives with her[1] mother and stepfather in Pennsylvania and will be nine next October. The complaint charges that an agreement under which the defendant supported his child has expired and has not been renegotiated. It is also alleged that since January, 1953, Mrs. Cohen, has been required to pay for the child's maintenance in the absence of any help from defendant. The mother seeks recovery of the moneys so spent and an order directing the father adequately to support his child in the future.

Defendant has moved to dismiss on the grounds that this Court is without jurisdiction to order the defendant to support his child and that the complaint fails to state a claim upon which relief can be granted.

Sec. 702 of Title 13 Delaware Code places the duty of supporting a child solely on the father if he is living and able to provide support. This section now found in the Code under the Title, ‘ Domestic Relations', is derived from an identical section enacted in 1943 and found as Chapter 159 of Vol. 44 Laws of Delaware. That the primary obligation of providing support and maintenance for a child is the father's is also the decisional law of the state, Hobbs v. Lokey, 7 W.W.Harr. 408, 37 Del. 408, 183 A. 631.[2] There is therefore no question but that in Delaware the duty of a father to support his child is a legal duty and not merely a moral obligation. Furthermore, in those states which deny to a child the right to sue directly for support in equity on grounds that the obligation is purely moral or that such suits tend to defeat domestic harmony, it is generally conceded that where a suit between husband and wife is not barred the mother can sue in her own name to collect for moneys laid out for [35 Del.Ch. 117] the child. It is also generally recognized in these states that merchants supplying necessaries to a child may collect at law from the father. In fact, the point of cleavage between the cases denying the child's right to sue in equity in his own name or by a next friend and those upholding such a right independently of statute would appear to be not on the question of the duty of a father to support a child but whether the child has a direct equitable remedy rather than an indirect legal remedy for obtaining such support, Simonds v. Simonds, 81 U.S.App.D.C. 50, 154 F.2d 326, 13 A.L.R.2d 1138 and Annotation at p. 1142.

If Chancery jurisdiction for this type of action existed at the time of the adoption of the Delaware Constitution of 1792 and unless later Delaware [3] constitutional and statutory provisions restrict such jurisdiction, duPont v. duPont, 32 Del.Ch. 56, 79 A.2d 680,affirmed 32 Del.Ch. 413, 85 A.2d 724, I conclude that this Court should furnish a remedy for a needy child seeking support from a father, Wedderburn v. Wedderburn, 46 App.D.C. 149,Schneider v. Schneider, 78 U.S.App.D.C. 383, 141 F.2d 542, Simonds v. Simonds, supra, McClaugherty v. McClaugherty, 180 Va. 51, 21 S.E.2d 761 and other cases of like import cited in Annotation in 13 A.L.R.2d at p. 1142 et seq. Obviously a common law suit unaided by a continuing support order would entail subsequent suits in order to maintain support payments and would otherwise make for a

Page 704

circuitous and imperfect route to the objective of adequate support. However, the first question to be answered remains, did the Court of Chancery at any time have jurisdiction to decree support for a minor?

As in the case of duPont v. duPont, supra, which was the suit of a wife for separate maintenance, the present case is evidently the first of its type to be filed in this Court. It was decided in the duPont case that since the general equity powers of the Court of Chancery of Delaware are those of the High Court of Chancery of Great Britain prior to the separation of the American colonies from Britain and because the colonies did not establish Ecclesiastical Courts for wives seeking support, a Court of Equity would have furnished a forum for [35 Del.Ch. 118] such suits in Delaware under the maxim that equity will suffer no right to be without a remedy. The majority opinion further held that this original jurisdiction of Chancery could not be altered or repealed by the Legislature under Sec. 17 of Article IV of the Delaware Constitution of 1897. Accordingly, the majority of the Court concluded that the Delaware Court of Chancery had jurisdiction to hear such a non-support case since a sufficient remedy had not been created in another court as permitted by Sec. 342, Title 10, Delaware Code

Turning to the English law on the maintenance of children we find in the case of Butler v. Butler (1743) 3 Atk. 58, 26 English Reprint 836, that the Lord Chancellor stated that unless the parent was totally incapable, the law of the land and of nature required a father to maintain his child. This statement appears at first blush to be at odds with the support principles set forth in Halsbury's Laws of England, second edition, vol. 17, at sec. 1392 where it is bluntly stated that the obligation of a father or mother to maintain a child arises only under the poor law unless the neglect would bring the case within the criminal law. Halsbury concedes, however, that Chancery had refused to allow maintenance out of property of infants where the father is in a position to maintain them, citing Fawkner v. Watts (1741) 1 Atk. 406, 26 English Reprint 257, Butler v. Butler,supra, and Wellesley v. The Duke of Beaufort (1826), 2 Russ 1, 38 English Reprint 236. Also in England the so called moral duty of ...


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