Pendexter v. Pendexter

DUFRESNE, Chief Justice

(concurring in result)

Following the dissolution of her marriage to Robert Pendexter, the plaintiff, Elizabeth Pendexter, brought two petitions for modification of the original decree granting her support money for their four minor children on the ground that conditions surrounding their care and maintenance had changed materially. In this appeal, we are only involved with the custodian-mother’s second request initiated in October 1974 which resulted in an overall increase of only ten ($10.00) dollars per week in support payments to be made by the defendant father to the plaintiff mother for three minor children. I concur that the instant appeal should be denied.

In most jurisdictions, as between the parents, the common law imposed the obligation to support the minor legitimate children of the marriage exclusively upon the father. See 59 Am.Jur.2d, Parent and Child, § 61, note 16 and cases cited; 67 C. J.S., Parent and Child, § 15b(1), note 47 and cases cited. As stated in Gilley v. Gilley, 1887, 79 Me. 292 , at page 294, 9 A. 623 , the law imposes upon the father the duty to nurture, support and educate his minor children during infancy and early youth, which duty continues until their maturity, when the law determines that they are capable of providing for themselves, and “at least during the life of the father, the mother, in the absence of any statutory *748 provision, or decree relating thereto, not being entitled to the services of their minor children, is not bound by law to support them.” (Emphasis supplied)

In Gilley, supra, this Court recognized that the underlying rationale for the common-law rule of the father’s exclusive duty to support his minor children was the corresponding common-law rule entitling the father as of right to the services of the minor children of the marriage.

Furthermore, “[u]nder the common law all of the earnings and property of the wife belonged to the husband. Therefore it was only natural and proper that he should be the one primarily responsible for the support of the minor children, which has always been regarded as a natural obligation of both parents. Under such circumstances, it would have been idle to place upon the wife obligations that could only be satisfied out of the property of the husband.” Purity Baking Co. v. Industrial Commission, 1929, 334 Ill. 586 , 166 N.E. 33, 34 .

The wife has long since the adoption of the common-law rule of exclusive duty of the husband to support the minor children of the marriage become emancipated and now possesses the full enjoyment of her property and earnings. In most cases where the bonds of matrimony are dissolved, she is given the custody of the minor children and thus becomes invested correspondingly with the right to their services which would otherwise belong to the father.

To cling to the fiction that the father is necessarily the best provider and that the mother, allegedly being of the weaker sex, is incapable of contributing to the natural duty of supporting her offspring is to live in the past and refuse to accept women’s desire to reach full equality with their male counterparts, including the right to share the legal responsibility of support to which their children are morally entitled. It is an undisputed fact of which this Court should take judicial notice that women have demonstrated their matching ability with that of the male species at practically every level of mental and physical activity.

Public policy is of prime consideration in all procedures relating to divorce and it is most important that the judicial process within delegated legislative authority be given such flexibility as will allow implementation of the State’s role of par-ens patriae in promoting the best interests and welfare of minor children, especially after the family unit has been severed through divorce of the parents. See Deblois v. Deblois, 1962, 158 Me. 24, 30 , 177 A.2d 199 .

In Greenwood v. Greenwood, 1915, 113 Me. 226, 229 , 93 A. 360, 361 , this Court said :

“The State has an interest in the welfare of the child, and in all divorce proceedings that welfare is held to be superior to the wishes of the parent, and governs the court in its decrees as to custody and maintenance. This jealous regard for the rights of the child should look askance at contracts between parents attempting to shift the legal responsibility. The relation between husband and wife is one thing, that between parent and child is quite another.”

Such a strong state policy favoring the promotion of adequate child support would be somewhat frustrated, should antiquated concepts of the legal unity of husband and wife and unrealistic presumptions of inferior earning power of the wife prevailing in the previous century receive judicial acquiescence in these modern times.

“Law is only sensibly formalistic. It is a practical science.” Bedell v. Reagan, 1963, 159 Me. 292 , 192 A.2d 24 . Courts must take judicial notice of changing times and conditions. Allison v. Allison, 1961, 188 Kan. 593 , 363 P.2d 795 .

Where the reason for the rule, as in the instant case, no longer exists, the *749 rule itself should cease, especially when mandated by public policy considerations. Appeal of Clarissa D. DeMendoza, 1945, 141 Me. 299 , 43 A.2d 816 . “Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.” Emery, Appellant, 1889, 81 Me. 275, 277 , 17 A. 68, 69 ; Robinson, Appellant, 1895, 88 Me. 17, 22, 23 , 33 A. 652 .

In Emery, Appellant, supra, the common-law rule that the will of a “feme sole” was revoked by her marriage was said to have been abrogated when the Legislature empowered married women to make, alter or revoke a will as fully and as freely as if she were not married.

In Robinson, Appellant, supra, this Court at that early date used the following crisp language to dispose of an analogous problem:

“It is manifest that these statutes [emancipation of married women] have wrought great modifications and radical changes in the relative property rights of husband and wife. In contemplation of law they are no longer one person, and their interests in property are no longer identical but separate and independent. Under these statutes the wife is invested with greater privileges and weighted with greater responsibilities and liabilities than before. The rule of the common law creating estates by entirety is irreconcilable with both the letter and the spirit of these statutes. It never rested upon a rational or substantial groundwork. It had its origin in feudal institutions and social conditions which were superseded centuries ago by the more enlightened principles of a progressive civilization. It is now repugnant to the American idea of the enjoyment and devolution of property and to the true theory of the marriage relation. ‘The reason of the law,’ says Lord Coke, ‘is the life of the law; and cessante ratione lex ipsa cessatJ The fictitious basis of this rule having been removed the rule itself must fail. To declare that there is no authority in the court to effectuate a clearly expressed and unmistakable intention of a grantor or testator, against such an antiquated and exploded dogma, would be a poor tribute to the creative power of the law and the original conceptions of justice in modern courts. The common law would ill deserve its familiar panegyric as the ‘perfection of human reason,’ if it did not expand with the progress of society and develop with new ideas of right and justice. ‘Considering the influence of manners upon law,’ says Chancellor Kent, ‘and the force of opinion which is silently and almost insensibly conducting the course of business and the practice of our courts, it is impossible that the fabric of our jurisprudence should not exhibit deep traces of the progress of society as well as of the footsteps of time.’ ” (Emphasis in original)

The genius of the common law is its flexibility and capacity for growth and adaptation. When common-law principles are no longer supportable in reason they are no longer supportable in fact. Handeland v. Brown, 1974, Iowa, 216 N.W.2d 574 .

It is fundamental that the rules of common law which are court-made rules can be changed by the court when it becomes convinced that the policies upon which they are based have lost their validity or were mistakenly conceived. Spokane Methodist Homes, Inc. v. Department of Labor and Industries, 1972, 81 Wash.2d 283 , 501 P.2d 589 .

As well stated by the Pennsylvania Court in Conway v. Dana, 1974, 456 Pa. 536 , 318 A.2d 324 , the primary purpose of child support is the best interest and welfare of the child. Support, as every other duty arising from the relationship of parent and child, is the equal responsibility of both mother and father, to be discharged in accordance with their respective capacity and ability.

*750 The mother is as much morally bound to care for, support, nourish, and educate her minor child as the father. Growe v. Growe, 1966, 2 Mich.App. 25 , 138 N.W.2d 537 .

Furthermore, the old common-law rule has been modified by a number of statutory enactments.

Our divorce statute itself provides that

“[t]he order of the court for support of minor children may run against the father or the mother in whole or in part or against both as the court in its sound discretion shall determine, irrespective of the fault of the father or the mother in the divorce action. When the order is to run against both, the court shall specify the amount each shall pay.” 19 M.R.S. A., § 752.

Section 211 of Title 19 provides for parity of rights respecting their minor children between the father and mother. Section 217 of Title 19 imposes limited liability, joint and several with their minor child, upon both parents for their child’s wilful or malicious damage to property or injury to person. Section 481 of Title 19 subjects both parents to criminal penalties for their failure to support their dependent minor children. Sections 442 and 443 of Title 19 (Uniform Civil Liability for Support Act) mandate identical duties of support of their minor child upon each parent. Moreover, the wife is made liable for the support of her husband when in need.

In view of the factual emancipation of women, the change of times, the enabling statutory directive to the judiciary that support orders may be made to run against both the father and mother as the court in its sound discretion shall determine, the old common-law rule that the father is primarily liable for the support of his children without regard to the mother’s earnings and assets is outmoded and must . be updated.

In fixing the amount to be contributed by the father for the support of the minor children of divorced parents, the court should consider the needs of the children, the assets of each parent, their respective ages, earning capacities, incomes and indebtedness, state of health, future prospects, the existence of other dependents, and any other factors which will aid the court in reaching a just and equitable result, having in mind that the primary state purpose is to implement the natural duty of both parents to support their offspring. Barnhard v. Barnhard, 1972, 252 Ark. 167 , 477 S.W.2d 845 . See also Plant v. Plant, 1974, 20 Ill.App.3d 5 , 312 N.E.2d 847 ; Anderson v. Anderson, 1973, Tex.Civ.App., 503 S.W.2d 124 ; Parivash v. Yousef, 1965, 89 N.J.Super. 133 , 214 A.2d 314 , remd. 94 N.J.Super. 403 , 228 A.2d 698 .

The plaintiff’s proof was sufficient to make out a prima facie case respecting the material change in the circumstances surrounding the needs of the minor children and the defendant’s ability to meet the increased support order. The Court undoubtedly considered the respective financial ability of the parties in reaching his conclusion. Therefore, I concur in denying the defendant’s appeal.

ARCHIBALD and DELAHANTY, JJ., join in opinion of DUFRESNE, C. J., concurring in result.