Meyland, August L., Jr.

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Domestic Relations -- Parent and Child -- Support of Incompetent Adult

University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 26 | Number 2 Article 102-1-1948Domestic Relations -- Parent and Child -- Supportof Incompetent AdultAugust L. Meyland Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationAugust L. Meyland Jr., Domestic Relations -- Parent and Child -- Support of Incompetent Adult, 26 N.C. L. Rev. 202 (1948).Available at: http://scholarship.law.unc.edu/nclr/vol26/iss2/10202 NORTH CAROLINA L4W REVIEW [Vol.26consideration of the decreased purchasing power of the dollar is thusgreatly larger in proportion to other verdicts in similar cases than theincreased cost of living would seem to justify.29ROBERT G. STOCKTON.Domestic Relations-Parent and Child-Support ofIncompetent AdultPlaintiff, wife of the defendant, brought suit against him to recoverthe value of necessaries and necessary services furnished by her to theiradult son. Plaintiff alleged that the defendant husband had separatedhimself from his family, that the son continued to live with the plaintiff,his mother, before reaching majority and thereafter, and that beforeand after attaining majority he was insolvent, unmarried, and so men-tally and physically handicapped as to be incapable of supporting him-self. On demurrer, held: a good cause of action was stated.'Under the English and earlier American view, the parent's obliga-tion to support his minor child was a moral one only.2  The prevailingview in this country now, however, is that there is a legal as well asmoral duty of support resting on the parent.3 While the common lawduty is widely recognized, the basis and reasoning upon which it hasbeen founded have varied greatly. Some courts have imposed the dutyof support as a reciprocal of the parent's right to the custody, controland earnings of the minor child ;4 others have found a basis in the in-"9 The fact that on a previous trial of this same case, reversed on appeal, thejury awarded only $100,000 would also point to the conclusion that an award of$160,000 was excessive.'Wells v. Wells, 227 N. C. 614, 44 S. E. 2d 31 (1947).'Mortimer v. Wright, 6 M. & W. 481 (Exch. 1841); Shelton v. Springett, 11C. B. 452 (1851); Kelley v. Davis, 49 N. H. 187 (1870); Freeman v. Robinson,38 N. J. L. 383, 20 Am. Rep. 399 (1876).3 1 ScnouzLER, DOMESTIC RELATIONS §787 (6th ed. 1921); MADDEN, PERSONSAND DOMESTIC RELATiONS §110 (1931).The North Carolina court early recognized a legal duty on the father to main-tain his children, even when they had separate estates of their own. Walker v.Crowder, 37 N. C. 478 (1843) ; Hagler v. McCombs, 66 N. C. 345 (1872). Theduty is not an absolute one, however. It is qualified by the parent's ability.Casualty Co. v. Lawing, 225 N. C. 103, 33 S. E. 2d 609 (1945).The duty of support is limited to necessaries, what constitutes necessariesvarying with the circumstances of the particular case. The liability is enforcedunder several principles: an agency implied in law, an agency implied in fact,or quasi-contract, the North Carolina court adopting the latter. See Howell v.Solomon, 167 N. C. 588, 592, 83 S. E. 619, 621 (1914).The duty of support is now generally covered by criminal statutes also. SeeN. C. GEN. STAT. (1943) §§14-322 through 14-325..' Central Asylum v. Knighton, 113 Ky. 156, 67 S. W. 366 (1902) ; Dedham v.Natick, 16 Mass. 140 (1819); Fulton v. Fulton, 52 Ohio St. 229, 39 N. E. 729(1895); Butler v. Commonvealth, 132 Va. 609, 110 S. E. 868 (1922). Right tocustody and earnings does not form a satisfactory basis for the duty, however,since the duty of support must still remain on the father even though custody of thechild has been awarded the mother or third persons. Alvey v. Hartwig, 106 Md.254, 67 Atl. 132 (1907); see Sanders v. Sanders, 167 N. C. 319, 83 S. E. 490,491 (1914).NOTES AND COMMENTSability of the child to care for himself 5 and the state's interest as parenspatriae.0 The state's concern in preventing the child from becoming apauper and a charge upon the taxpayer is said by some to warrant theimposition of the duty;7 and still others, including the North Carolinacourt, have taken the view that the obligation springs from the naturalrelationship of parent to child, a responsibility arising from the factof parenthood alone.8Having recognized the existence of the legal duty owed by parentto child, the North Carolina court has not confined enforcement of theduty to actions by third parties who have furnished necessaries, or todivorce decrees or criminal actions. Instead, a progressive attitude hasbeen taken; the obligation has been directly sanctioned by allowing thechild himself to proceed directly against the parent.0 Such direct en-forcement would seem to be equally available to illegitimate children.against the putative father.1The common law duty of support owed to the child ordinarily termi-nates (1) upon the attainment of majority,11 (2) when there has other-wise been an emancipation, 12 or (3) upon the death of either parent or'Porter v. Powell, 79 Iowa 151, 44 N. W. 295 (1890); Doughty v. Engler,112 Kan. 583, 211 Pac. 619 (1923) ; Buchanan v. Buchanan, 170 Va. 458, 197 S. E.426 (1938).2Geary v. Geary, 102 Neb. 511, 167 N. W. 778 (1918).' Willitts v. Willitts, 76 Neb. 228, 107 N. W. 379 (1916).'Barritt v. Barritt, 44 Ariz. 509, 39 P. 2d 621 (1934); Doughty v. Engler,112 Kan. 583, 211 Pac. 619 (1923) ; Buckminster v. Buckminster, 38 Vt. 248, 88 Am.Dec. 652 (1865). "The duty of parents to provide for the naintenance of theirchildren is a principle of natural law; an obligation, says Puffendorf, (b) laid onthem not only by nature herself, but by their own proper act, in bringing theminto the world ... ." 1 CooLEY's BLACXSTONE 446 (3rd ed. 1884).Thayer v. Thayer, .189 N. C. 502, 127 S. E. 553 (1925) (natural obligation tosupport illegitimate children is sufficient consideration to uphold express promiseto furnish necessaries) ; Sanders v. Sanders, 167 N. C. 317, 83 S. E. 490 (1914)(legal, natural and moral duty to support minor children irrespective of loss ofcustody); Burton v. Belvin, 142 N. C. 153, 55 S. E. 71 (1906) (father undernatural obligation to support illegitimate children) ; Kimbrough v. Davis, 16 N. C.71 (1827) (natural duty of support extends to illegitimates).Green v. Green, 210 N. C. 147, 185 S. E. 651 (1936); Note, 15 N. C. L. Rv.67 (1936) ; Pickelsimer v. Critcher, 210 N. C. 779, 188 S. E. 313 (1936).The weight of authority, however, is apparently contra. Rawlings v. Rawlings,121 Miss. 140, 83 So. 146 (1919) ; Huke v. Huke, 44 Mo. App. 308 (1891) ; Glazev. Hart, 225 Mo. App. 1205, 36 S. W. 2d 684 (1931) ; Allings v. Allings, 52 N. J.Eq. 92, 97 Atl. 655 (1893)."o Doughty v. Engler, 112 Kan. 583, 211 Pac. 619 (1923) ; cf. Hyatt v. McCoy,195 N. C. 762, 143 S. E. 518 (1928) ; Thayer v. Thayer, 189 N. C. 502, 127 S. E.553 (1925) ; see Burton v. Belvin, 142 N. C. 151, 153, 55 S. E. 71, 72 (1906)Kimbrough v. Davis, 16 N. C. 71, 75 (1827).Humboldt County v. Beigger, 232 Iowa 494, 4 N. E. 2d 422 (1942) ; Breuerv. Dowden, 207 Ky. 12, 268 S. W. 541 (1925); Blades v. Szatai, 151 Md. 644, 135Al. 841 (1927); Brown v. Ramsay, 29 N. J. L. 117 (1860); re Beilstein, 145Ohio St. 397, 62 N. E. 2d 205 (1945) ; Lind v. Zeisel, 159 N. E. 849 (Ohio App.1927).2Emancipation may be either partial or complete; but it is only in completeemancipation that all rights and duties of the parent-child relationship are ex-tinguished. Note, 28 MINN. L. REv. 275 (1944). Where there has not been a1948]NORTH CAROLINA LAW REVIEWchild.13 The principal case, however, constitutes an exception to the"majority" rule. Under the doctrine of this and supporting cases, if atthe time of attaining majority the child is mentally or physically in-capable of self-support, the obligation upon the parent does not terminatebut continiies as long as the necessity for support exists.14 The courtrecognizes that majority is a status rather than an inflexible rule ofsubstantive law conferring vested rights. Since the decision may notbe rationalized under the rules of emancipation, the North Carolinacourt properly chose to place it upon public policy. In the final analysis,the question becomes-shall the parent be legally bound to support hisincapacitated adult child or shall that duty devolve upon the taxpayers ifthe parent chooses to ignore his moral obligation? Consistent with thetheory that parental duty springs from and is a responsibility of parent-hood, the North Carolina court has placed the burden upon the parent.North Carolina has no statute making parents liable to the state orcounty for the maintenance furnished to adult incompetents. 15 Undercomplete emancipation, i.e. where there has not been an assent by both parties, theact or assent of one party alone cannot absolve that party of the duties upon him.Thus in Hunycutt v. Thompson, 159 N. C. 29, 74 S. E. 628 (1912) it was heldthat the act of the father in driving his minor son from home might result inemancipation as to the child but did not free the father of the duty of support.Assent need not be express; it may be implied from circumstances. James v.James,.226 N. C. 399, 38 S. E. 2d 168 (1946) ; Jolly v. Telegraph Co., 204 N. C.136, 167 S. E. 575 (1933), reh. denied, 205 N. C. 108, 170 S. E. 145 (1933);Lowrie v. Oxendine, 153 N. C. 267, 69 S. E. 131 (1910); Ingram v. R. R., 152N. C. 762, 67 S. E. 926 (1910). Exceptions to the rule requiring mutual assentfor complete emancipation are marriage and enlistment in the armed services. Com-plete emancipation occurs here because of the inconsistency of the parent-childrelationship with the new relationship entered into by the child." Blades v. Szatai, 151 Md. 644, 135 Atl. 841 (1927) ; Rice v. Andrews, 217N. Y. Supp. 528 (1926) ; Comment, 25 MICH. L. REV. 555 (1926); see Stone v.Bayley, 75 Wash. 184, 189, 134 Pac. 820, 822 (1913) (the court questioned thetermination of the common law duty by death as a matter of public policy and helda divorce decree providing for maintenance was binding upon the father's estate).That a father may disinherit his child and leave him to become a charge uponthe State has been severely criticized. MADDEN, PERSONS AND DOMESTIC RELATIONS§115 (1931)." Freestate v. Freestate, 244 Ill. App. 166 (1927) ; Breuer v. Dowden, 207 Ky.12, 268 S. W. 541 (1925) ; Crain v. Mallone, 130 Ky. 125, 113 S. W. 67 (1908) ;Comm. v. O'Malley, 105 Pa. Super. 232, 161 Atl. 883 (1932) ; Rowell v. Town ofVershire, 62 Vt. 405, 19 Atl. 990 (1890) ; Schultz v. Western Farm Tractor Co.,111 Wash. 351, 190 Pac. 1007 (1920); see Borchert v. Borchert, 45 A. 2d 463,465 (Md. 1946); re Beilstein, 145 Ohio St. 397, 62 N. E. 2d 205, 207 (1945);Gaydos v. Domabyl, 301 Pa. 523, 152 Atl. 549, 553 (1930).New York has apparently imposed a common law duty to support incapacitatedadult children notwithstanding that they did not become incapable of self-supportuntil after attaining majority. In re Van Denburgh, 178 App. Div. 237, 164 N. Y.Supp. 966 (1917); Alger v. Miller, 56 Barb. 227 (N. Y. 1868); Cromwell v.Benjamin, 41 Barb. 558 (N. Y. 1863)." The duty to support adult incompetents apparently exists only as betweenhusband and wife in North Carolina.'N. C. GEN. STAT. (1943) §122-46 provides that' the clerk of superior courtmay commit a mentally disordered, epileptic, or person addicted to the use ofdrugs or alcohol to the State Hospital under a certificate of indigency where suchperson has no estate or property "nor has any one such property who is liablefor his maintenance under §35-33 of the General Statutes." By §35-33 it is pro-[Vol. 26NOTES AND COMMENTSthe holding of the principal case, however, the state or county wouldseem to have a recoverable claim, for necessaries furnished, against theparent of any inmate of a state or county hospital or asylum when suchinmate was incapacitated upon reaching majority.16 But where theadult child became incapacitated after having attained majority, the dutyof support, having once terminated, is not revived; and accordingly norecovery could be had.17In the principal case, the court, in creating the exception to the"majority" rule, reached a result. commensurate with sound public policyand progressive social principles. Would an extension of that exceptionto include a parental duty of support embracing all incapacitated adultchildren who would become a charge upon the taxpayers be desirable?Only one state has apparently extended the common law duty of sup-port to that extreme.' 8 The better solution seems to lie in the enactmentof so-called "poor laws." In substance these provide that the father,mother, grandfather, grandmother or children, in that order, of any oldor incapacitated indigent person shall maintain them if of ability to doso.19 Such a statute would seem to be consistent with North Carolinapolicy as enunciated in the cases and would properly place the burdenof maintenance upon those more equitably able to bear it than thetaxpayers.AUGUST L. MEYLAND, JR.vided that the clerk shall inquire whether the inebriate is indigent and if he sofinds he shall then inquire whether or not the petitioning wife or husband or ifthe inebriate is a minor whether the parent has sufficient estate to bear the costof maintenance; if sufficient estate is found the clerk shall order payment there-from; if not, payment shall be made by the county from which committed.See N. C. GEN. STAT. (1943) §§143-120 through 125."Breuer v. Dowden, 207 Ky. 12, 268 S. W. 541 (1925). But cf. Porter v.Powell, 79 Iowa 151, 44 N. W. 295 (1890) (distinguishable on the ground thatonly a partial and not a complete emancipation was achieved). See Wells v.Wells, 227 N. C. 614, 619, 44 S. E. 2d 31, 35 (1947)." In re Van Denburgh, 179 App. Div. 237, 164 N. Y. Supp. 966 (1917) ; Algerv. Miller, 56 Barb. 227 (N. Y. 1868); Cromwell v. Benjamin, 41 Barb. 558(N. Y. 1863). The matter is now covered by statute, N. Y. SOCIAL WELFARE LAW§101, providing: "The husband, wife, father, mother, grandparent, or child- of arecipient of public assistance or care or of a person liable to become in needthereof shall, if of sufficient ability, be responsible for the support of suchperson ..." "Poor laws" in general are patterned after 43 Eliz. c. 2 (1601).Substantially similar statutes are found in a majority of the states. See ALA.CODE (1940) tit. 44, §8; ARK. DIG. STAT. (Pope, 1937) §7603; CAL. CIV. CODE(Deering, 1941) §206; COLO. STAT. ANN. (Michie, 1935) c. 124, §1; CONN. GEN.STAT. (1930) §1717; GA. CODE'ANN. (Park, 1936) §2301; IDAHo CODE (1932)§31-1002; ILL. ANN. STAT.'(Smith-Hurd, 1935) c. 107, §1; IOWA CODE (1946)§252.2; ME. REV. STAT. (1944) c. 82, §20; MASS. ANN. LAWS (1942) c. 117, §6;MICH. STAT. ANN. (Henderson, 1937) §16.122; MINN. STAT.. (Henderson, 1941)§261.01; Miss. CODE ANN. (1942)- §7357; MONT. REv. CODE (Darlington, Supp.1939) §4522; NEB. REv. STAT. (1943) §68-101; N. H. Rav. LAWS (1942) c. 124,§18; N. J. STAT. ANN. (1940) §44:1-140; N. Y. SOCIAL WELFARE LAW §101;N. D. 'REv. STAT. (1943) §50-0119; OKLA. STAT. ANN. (1936) tit. 10, §12; PA.STAT. ANN. (Purdon, 1941) tit. 62, §195; UTAH CODE ANN. (1943) §91-0-1; VT.Pur. LAWS (1933) §3937; WAsn. REV. STAT. ANN. (Remington, 1933) §9982:W. VA. CODE (Michie, 1943) §626(150).19481

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Domestic Relations -- Parent and Child -- Support of Incompetent Adult

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