Margaret Halsey SPRUANCE; Margaret Halsey Spruance, next friend of Margaret G. Spruance, a minor child, William Halsey Spruance, a minor child, and Alice Lea Spruance II, a minor child, Plaintiffs,
Preston Lea SPRUANCE, Defendant.
Action for separate maintenance brought by wife and three minor children of defendant, wherein defendant moved to dismiss as to children on ground of lack of jurisdiction as to nineteen year old daughter on ground that he no longer had legal duty to support her, and wherein parties filed cross-motions for summary judgment. The Court of Chancery, Seitz, Chancellor, held that father had legal duty to support nineteen year old daughter, and that disputes in affidavits as to what amount was sufficient to meet plaintiffs' legitimate needs could not be fairly determined in summary judgment proceedings.
Motions to dismiss and motions for summary judgment, denied.
[35 Del.Ch. 189] Arthur G. Logan of Logan, Marvel, Boggs & Theisen, Wilmington, for plaintiffs.
John J. Morris, Jr., of Morris, James, Hitchens & Williams, Wilmington, for defendant.
This is an action for separate maintenance brought by plaintiffs who are the wife and minor children of the defendant.
Defendant moved to dismiss this action as to all of the children on the ground that this Court lacked jurisdiction of an action for separate maintenance on their behalf. This objection is overruled on the authority of the recent decision of the Vice Chancellor in Cohen v. Markel, Del.Ch., 111 A.2d 702.
Defendant also moved to dismiss this complaint as to his minor child, Margaret G. Spruance, on the ground that while she is not twenty-one years of age, she is over eighteen years of age and that he therefore no longer has a legal duty to support her.
Defendant concedes that at common law a father had a duty to support his children until they reached their majority, i. e., [35 Del.Ch. 190] twenty-one years. See 67 C.J.S., Parent and Child, § 17. This duty was presumably incorporated into our statutory law by the enactment of 13 Del.C. § 702 which imposes a legal duty on a father to support his ‘ minor’ children. I conclude that ‘ minor’ was used in the statute in its common law sense. Compare
State v. Clarke, 3 Har. 557.
But defendant points to 13 Del.C. § 502(a) which makes a father guilty of a misdemeanor if he fails to provide support for his children ‘ under the age of 18 years'. The eighteen year limitation in § 502(a) is used solely in connection with the creation of a misdemeanor. On the other hand § 702 deals with the legal duty of a father to support his minor children generally. I believe § 702 refers to a father's civil obligation. I conclude therefore that the two statutes are not inconsistent and that § 702 controls in this case.
Since I conclude that the father's civil obligation to support his children continues at least until they reach the age of
twenty-one years it follows that the defendant's motion to dismiss the action as to his daughter, Margaret, must be denied.
I now consider the cross-motions of the parties for summary judgment. In the discussion of the facts, when referring to ‘ ...