Opinion
No. 32392.
November 16, 1936.
1. BASTARDS.
Decree of annulment on ground of coercion in inducing marriage would not render child born during wedlock illegitimate, where putative father of child had married mother during her pregnancy with knowledge thereof and child was born thereafter, since status of legitimacy continues once acquired.
2. BASTARDS.
Presumptively, father of child born during marriage is liable for its support after annulment of marriage on ground of coercion, and mother is secondarily liable.
3. MARRIAGE.
Failure of mother to petition for support of child in annulment proceedings held not to exonerate father from responsibility for support of child, where annulment was granted and child was held legitimate, as against contention that decree in annulment proceedings was res judicata.
APPEAL from chancery court of Harrison county. HON. D.M. RUSSELL, Chancellor.
Jo Drake Arrington, of Gulfport, for appellant.
The annulment suit and the decree rendered therein which is relied on by the appellee and invoked as res adjudicata of the case at bar, involved the sole issue of whether or not the appellee (who was complainant in the annulment suit) was coerced into the marriage with the appellant (who was the defendant in the annulment suit). The pleadings in the annulment suit were made Exhibits "A" to "F" to the appellee's plea of res adjudicata. They will be searched in vain for any other issue. The final decree annulling the marriage as having been obtained by coercion, or duress, does not mention the child of the parties, of the marriage.
Before the plea of res adjudicata can prevail, four things must be shown: (1) Identity in the thing sued for; (2) Identity in the cause of action; (3) Identity of persons and parties to the action; and (4) Identity of the quality in the person for or against whom the claim is made.
Creegan v. Hyman, 93 Miss. 493, 46 So. 954; Jones v. George, 126 Miss. 576, 89 So. 231; True-Hixon Lbr. Co. v. Thorn, 158 So. 909; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73.
A plea setting up res adjudicata must distinctly aver that the particular issue in question was adjudicated in the former suit; general language or inference is insufficient.
Jones v. Brandon, 60 Miss. 562.
The appellee's plea of course could not pretend that the particular issue in this case — that of the father's liability for the support of his child — was adjudicated in the annulment suit.
The Supreme Court has held time and again that the father's duty to support his child is a continuing duty, even after the father and mother have ceased to sustain the relation to each other of husband and wife, as in the case at bar.
Lee v. Lee, 135 Miss. 865, 101 So. 345; Schneider v. Schneider, 155 Miss. 621, 125 So. 91; Watts v. Smylie, 116 Miss. 12, 76 So. 684.
In holding that the father's duty to support his child is a continuing one, our court has aligned itself with the vast majority of jurisdictions, which maintain the rule that even a decree of absolute divorce in which no provision is made for the support of his children, does not release the father from his duty to support them.
Gully v. Gully, 231 S.W. 97, 15 A.L.R. 564; Amis' Divorce and Separation in Mississippi, sections 30, 231-238.
The fact that the marriage in this case was annulled, whereas in most of the cases cited above it was dissolved by a decree of absolute divorcement, is irrelevant to the issue. The appellee's duty to support his child, or to reimburse the appellant for necessary expenditures made in its support, is his common law duty.
The marriage was only voidable; the child was a legitimate child of the appellee.
Ervin v. Bass, 172 Miss. 332, 160 So. 568; Ellis v. Ellis, 152 Miss. 836, 119 So. 304.
The child in the case at bar is legitimate as a matter of law.
Parkinson v. Mills, 159 So. 951, 172 Miss. 784.
In Russell v. Russell, 154 So. 881, it was held that a previous allowance to a wife in a divorce action was not res adjudicata in a subsequent suit by the wife to recover expenses incurred by her during a serious and protracted illness of their child.
T.J. White and C.B. Adam, both of Gulfport, for appellee.
It is our contention that any relief sought by the appellant herein must of necessity be based upon a valid marriage. The decree which was rendered on July 1, 1933, after a full hearing in the matter, up to this time, stares the appellant in the face; which decree was a solemn decree of the chancery court, rendered at a time when the appellant and appellee herein, were properly before the court, the issues were clearly joined and presented, and the court found as a matter of fact and law that there had only been a pretended marriage between the parties, and that it was, and has always been, null and void.
Where a court has jurisdiction of the subject-matter and the parties in interest, its judgment is not alone res adjudicata of the questions specifically presented by the pleadings, but is also res adjudicata of all questions necessarily involved and which could have been presented.
Bates v. Strickland, 103 So. 432; Dean v. Bd. of Supervisors 135 Miss. 268, 99 So. 563; Vinson v. Colonial and U.S. Mortgage, 116 Miss. 59, 76 So. 827; Harvison v. Turner, 116 Miss. 550, 77 So. 528.
It is not our contention herein that it is not the father's duty to support his child, it is our contention that it is not the appellee's duty to support some other man's child. The various cases cited by counsel herein, where the court held it was the father's duty to support his child, are all based upon suits filed, wherein there was a valid wedding involved, a legitimate child, or children, and a valid decree of divorce.
If the case of Ervin v. Bass, 172 Miss. 332, 160 So. 568, is to be depended upon, then it settles the issue here, for in that case this honorable court said the decree of annulment should have made proper provision for the support and maintenance of the child, and doubtless would have done so, had the mother in response to the suit for annulment, properly presented that question to the court and that "she could not omit to do so, and afterwards institute a proceeding in bastardy."
And the court might have added that she could not omit to do so, and failing to appeal from a decision of the chancery court, adjudicating as a matter of fact and law, that her pretended marriage was null and void, and never in fact had any existence, and then, more than two years later come back into the same court and base her cause of action upon the validity of a marriage that had been set aside, cancelled and held to be null and void.
There are statements about the presumptions of legitimacy of the child in the case of Ervin v. Bass, but presumptions fade and give way where positive proof is introduced.
Her only right to proceed in this court must be based upon the validity of her said marriage, and must be based upon positive proof of the appellee being the father of said child. These matters were a part of the annulment proceeding and should have been presented at that time.
Argued orally by Jo Drake Arrington, for appellant, and by T.J. White, for appellee.
Appellant, Betty Bass, exhibited her amended bill against the appellee, John Edward Ervin, by which she sought to recover from the appellee support, and physicians' bills incurred and expended by her, for the maintenance of their minor child, Fred Edward Ervin. The bill alleged that the child was born on the fifth day of April, 1933, while appellant and appellee were legally married and in law husband and wife, and that the child had been in the custody of its mother since its birth. It was further alleged that the marriage was annulled on July 1, 1933, and that since the birth of the child appellant had made certain arrangements with her parents for the support of the child, and had made payments on that contract, but that she herself was poverty-stricken, as were her parents, and that she was unable to pay an adequate amount for the support of the child.
The bill further alleged that there was a bastardy proceeding before a justice of the peace on December 9, 1933, and that said cause was appealed to the circuit court, where a judgment was rendered against the appellee, ordering him to pay the sum of fifteen dollars monthly as sued for, for the support of the child as an illegitimate until he became eighteen years of age; and further that this cause was appealed to the Supreme Court, being reported in Ervin v. Bass, 172 Miss. 332, 160 So. 568.
The account is itemized, and it is unnecessary to detail the items here.
The prayer of the bill is that a decree be rendered against the appellee, the father of the said child, for its support and maintenance, and for an order fixing the future support of said child.
To this bill, appellee filed a plea of res adjudicata. In brief, it sets up the pleadings and decree in the annulment case, dated July 1, 1933, as establishing that the decree of annulment there rendered, on the ground of duress and coercion, adjudicated that the child, whose support is here sought to be enforced, was illegitimate; and further that, no petition or request having been made to the court in the annulment proceedings for its support, the appellant, the mother of the child, at a subsequent date, had waived any right to ask for its support and now have same granted.
It may be assumed, without setting forth the decree, that the decree in the annulment proceeding was to the effect that the marriage had between the parties was the result of coercion and duress, and was void ab initio as between them.
Without regard to whether the plea as filed may be treated as an answer, we shall proceed to decide the case on the merits as to the plea. The court below held that, because in appellant's answer to the bill for annulment it was averred that, if such decree was granted, her child would thereby become an illegitimate child, and because she did not in that proceeding present any request to the court for the support of this child, thereby she had waived her right in a subsequent proceeding to maintain a bill for that purpose. From the decree sustaining appellee's plea to the bill of appellant for the support of her child, appeal to this court is made by the appellant.
On consideration of the proceeding in bastardy between the same parties in this court, the law applicable to this case, and all others similar, was settled. It was held that, where the putative father of an unborn child married the woman during her pregnancy with knowledge thereof, and during their wedlock the child was born, the legitimacy of the child was established upon this truth during wedlock, and a subsequent decree of annulment on the ground of coercion did not render the child illegitimate; that a marriage, the consent to which has been induced by coercion and duress, is not void, but voidable; and that the marriage remained valid for all purposes until dissolved by a decree of a competent court. See Ervin v. Bass, 172 Miss. 332, 160 So. 568. We do not consider that case from the standpoint of the law of the case, but upon the rule of stare decisis it happens that the facts are the same as presented by the plea of res adjudicata in this case. We are not here concerned as to the effect of the annulment decree upon the wife and husband, but rather its effect upon this infant; and we think the court emphatically settled that the decree did not and could not declare a child born in wedlock under the circumstances herein stated illegitimate. If this child was legitimate on the 30th day of June, 1933, then it so continues throughout the ceaseless ages of eternity. Once legitimate always legitimate.
In the case of Ervin v. Bass, supra, it was held that bastardy proceedings could not be maintained for the reason a child born in wedlock was not a bastard, but a legitimate child. It was further held therein that proper provision for the support and maintenance of the child should have been made in the decree of annulment. The question of the support of the child was not presented to the chancery court in the annulment proceedings. In that case the court cited Amis on Divorce and Separation in Mississippi, sec. 30, which is, in effect, that proceedings in annulment for support and alimony are controlled by our procedure on divorce. In the case of Sims v. Sims, 122 Miss. 745, 85 So. 73, this court held that the wife is not entitled to temporary alimony unless it appears at least prima facie that the marriage is valid. We cite that case as evidencing the procedure adopted by the courts of this state.
Presumptively, then, Ervin is the father of this child, and is primarily liable for its support, the mother being liable secondarily. There was a ceremonial marriage, as alleged. In the cases of Lee v. Lee, 135 Miss. 865, 101 So. 345, and Schneider v. Schneider, 155 Miss. 621, 125 So. 91, 92, this court held in the latter case that, "where a decree of divorce accorded the custody of the minor children to the wife, but made no provision for their support, it is still the duty of the father to support them, unless, under the law, there is some reason why he should be relieved therefrom, and where the mother furnishes their support, and no such reason exists, the father becomes her debtor to that extent, for which debt she may recover against him." And this is true even if the mother failed to have allowance made on the hearing of the decree for divorce. In Russell v. Russell, 170 Miss. 364, 154 So. 881, where there had been an allowance for support of the child, this court permitted the mother to recover for unusual and extraordinary expenses incurred in surgeons' and hospital bills furnished the child during a serious illness as unusual and extraordinary expenses incurred during the pendency of that appeal. Recovery was there allowed in a court of law; and it was held that the order of allowance made in the original decree was not res adjudicata of the unusual and extraordinary expenses. We are, therefore, of the opinion that the failure of the mother on the hearing of the annulment proceedings to petition for the support of her child did not release or exonerate the father from the support of the child; and that its support, as a matter of public policy, could not be waived, and that the mother, the same as a stranger, upon a proper case, can recover the necessary and proper expenditures for the support of the child, which in this case has been adjudged by this court to be a legitimate child. The plea of res adjudicata should have been overruled, and the case should be heard upon its merits.
We have not here considered the items of the account as presented in the amended bill, but have simply disposed of the case upon the plea of res adjudicata, there being no other question before us.
Reversed and remanded.