Opinion
March 3, 1965 —
March 30, 1965.
APPEAL from a judgment of the county court of Milwaukee county: RUDOLPH J. MUDROCH, Judge. Affirmed.
For the appellant there was a brief by Lichtsinn, Dede, Anderson Ryan of Milwaukee, for Harold F. Lichtsinn, executor, and by Lewis A. Stocking of Milwaukee, Guardian ad litem, for John and Jo Ann Richardson, and oral argument by Eldred Dede.
For the respondent there was a brief and oral argument by Henry L. Arnold of Milwaukee.
Claim of Sidney Turer against the estate of Betty Jane Turer, his deceased wife.
Sidney Turer and Betty Jane Richardson were married in 1954. Betty Jane had very recently been divorced from William Richardson. Her two children by Richardson, born November 30, 1950, and March 19, 1952, remained in Betty Jane's custody and lived with Sidney and Betty Jane.
Betty Jane had no property nor income prior to 1959 except for $950 paid her by Richardson toward the support of the children. In 1959 her mother died and Betty Jane inherited a part of her property. The Turers lived in a flat in a duplex owned by the mother, and while she was alive, Sidney paid the mother $85 per month rent. After the mother's death, Betty Jane had a half interest in the duplex and Sidney paid her $50 per month rent. In 1960 and 1961 Betty Jane received about $300 each year in dividends from securities and in 1960 she received about $750 as her fee as executrix. The record does not disclose whether she spent any of her funds for the children. Sidney testified in general terms that he provided all support and maintenance for all members of the household. Twelve to fifteen dollars were spent each month for dairy products and $30 to $35 were spent each week for other food. He also paid for heat, utilities, clothing, and the like.
In 1959 Betty Jane brought an action against Richardson, seeking judgment for amounts expended in the past for the support of the children, and requiring regular payments in the future. Her action for divorce had been based on service by publication and the judgment had left open the matter of support payments until personal jurisdiction could be obtained. She alleged in her complaint that she had spent $5,900 on the support and maintenance of the children and that after crediting Richardson with $950, $4,950 remained due.
Upon stipulation, judgment was entered November 15, 1961, in the amount of $4,100 for past support, payable upon distribution of the estate of Richardson's mother. The judgment also required monthly payments beginning December 1, 1961.
Betty Jane died June 27, 1962, before collection of the $4,100 or any of the monthly payments. Her half interest in the duplex was appraised at $9,000. At her death she had $5,300 in a savings account and securities appraised at $8,400. She had suffered from a severe heart ailment for several years. She left a will, made shortly before her death, devising all her property in trust for her two children. Sidney was unaware of the will.
Sidney filed a claim for $9,000 for room, board, and care of the children. The $4,100 due from Richardson under the judgment was collected by Betty Jane's executor.
The county court found that Sidney had supported the children, except for the $950 contributed by Richardson; that Sidney had no intention of charging the children for their keep, but it could not be presumed that he would not demand money paid for their support; that the $4,100 was specifically obtained for support which he had furnished; and that Sidney was entitled to this fund as reimbursement.
Judgment for claimant was entered September 4, 1964. The executor appealed.
1. Sufficiency of proof. Appellant executor contends that the proof of the cost of support furnished by Sidney is so uncertain that no definite finding as to amount is possible. The court, however, determined only that the cost for the six years before Betty Jane's death exceeded $4,100. We deem the finding was sufficiently supported. Betty Jane's complaint in the action against Richardson fixed the amount at $4,950 for the period from 1954 to 1959. Sidney testified that he paid all the living expenses. He indicated that milk and other food for the family of four ran from $1,700 to $2,000 per year, and that there were other expenditures partly attributable to the children. It is clear enough, also, that Sidney paid virtually all the expenses during the 1954-1961 period for which the $4,100 was recovered.
2. Waiver or estoppel. Appellant executor contends that Sidney waived, or is estopped from making, a claim that he paid the living expenses of the children because he was aware of Betty Jane's action against Richardson in which she alleged she paid them. The inconsistency is more apparent than real. This court has held that where the child of divorced parents is supported as a member of the family of his mother and her second husband, for which the second husband is the breadwinner, the mother may recover accrued unpaid support money from her divorced husband. The theory was that the mother, the homemaker, presumably suffered pecuniary injury because of the use of the resources of the new family to provide that which the father had the duty to provide, but did not. Permitting the mother to recover from the father in this situation does not necessarily exclude the second husband from asserting a claim to the proceeds as between himself and the mother.
Braun v. Brown (1957), 1 Wis.2d 481, 486, 85 N.W.2d 392, 86 N.W.2d 427.
3. The merits. The original theory of Sidney's claim was that Betty Jane was liable upon implied contract to pay Sidney the reasonable value of the food, lodging, clothing, and the like, furnished to her children. The county court declined to allow the claim on that theory, and we agree. The court did recognize, however, that an identifiable fund was in the hands of the executor, that the fund represented the accrued obligation of the children's father to contribute to the support of the children in the past, and that Sidney had furnished more than that amount of money in order to support them. The court evidently concluded that these facts gave Sidney an equitable claim upon the fund.
Appellant executor has cited authorities dealing with several aspects of the type of situation before us where children are cared for in the family headed by a stepparent. Under some circumstances, the stepparent may become obligated to support his stepchildren.
"It is practically the universal rule that a stepfather, as such, is under no obligation to support the children of his wife by a former husband, but that if he takes the children into his family or under his care in such a way that he places himself in loco parentis, he assumes an obligation to support them, and acquires a correlative right to their services."
39 Am. Jur., Parent and Child, p. 699, sec. 62.
"If, however, a stepparent has assumed the parental relation to the children and holds them out to the world as members of his own family, he places himself in loco parentis, and incurs the same liability with respect to their support and education as if they were his own children."
67 C.J.S., Parent and Child, p. 808, sec. 80.
The right of a stepparent to compensation from the separate property of a stepchild is also dependent upon the circumstances under which the stepchild resides with the stepfather's family.
67 C.J.S., Parent and Child, p. 809, sec. 80.
There is a presumption that where near relatives, by blood or marriage, reside together as a family, services rendered by one to another, including the provision of board and other maintenance, are gratuitously rendered.
Hall v. Finch (1871), 29 Wis. 278, 286; Estate of Schmidt (1896), 93 Wis. 120, 124, 67 N.W. 37; Estate of Goltz (1931), 205 Wis. 590, 238 N.W. 374.
We are not concerned in this case with a claim by Sidney that he is entitled to recover the value of the care from any separate property of the children. Nor are we concerned with any claim by the children, the public, or some third party who has supplied necessaries that Sidney has entered into a relationship with the children which obligated him to provide support. We are not concerned with an allowance of a claim against the mother upon a theory of contractual liability. Although a wife in this situation could make an enforceable agreement with her second husband to compensate him out of her separate estate for his contribution to the care of her children by a former marriage, there is no evidence that Betty Jane made such a promise. We do not hesitate to extend the presumption of gratuity above mentioned so that in the absence of an express promise she incurred no liability to pay for the support furnished her children in the home maintained by her second husband. But the existence or absence of an obligation of the stepfather to the children or they to him, and the absence of a contractual obligation of the mother to the stepfather do not answer the question presented.
Here the children have been supported for a period of years by the combined efforts of their mother and stepfather. The mother has kept the house and supplied most of the personal care. The stepfather has furnished the money and presumably some of the personal care. During the same period, the children's father has had a duty to contribute to the support of the children, but has failed to do so. He has now paid over an amount of money which has been judicially determined to be an acquittance of his obligation for the particular past years. As between the mother, who happens in this case to be deceased, and the stepfather, who is entitled to the fund?
The members of this court hold different views as to the proper answer:
The first view, held by the majority, is that the money paid by Richardson represents the obligation of the father during certain past years. This obligation has been fulfilled by the stepfather during those years and he therefore has supplied the consideration for the money collected by the executor. It is significant that the amount of Richardson's obligation was measured by the amount of money spent for support, and this money was furnished by Sidney. It is reasonable to suppose that if Betty Jane had lived she would at least have used the money for family purposes and that if Richardson had paid the money in periodic instalments in the past, she would have used it to help with family expenses. There is unjust enrichment of Betty Jane's estate if the fund is not now paid to Sidney. The allowance of the claim amounted to the recognition of a resulting trust and was proper.
The second view, held by the minority, is that the support was provided by the joint efforts of mother and stepfather. The mother was homemaker for her husband and herself as well as the children; the father was breadwinner for all four. Their respective contributions to the support of the children cannot be separately evaluated in money. Since our established rule permits the mother to recover support money the father in situations like the present one, it becomes part of her separate estate and she should not be required to account for it to the stepfather in the absence of an express agreement or other objective evidence of an intention to pay it over.
See Braun v. Brown, supra, footnote 1.
Mr. Chief Justice CURRIE, Mr. Justice GORDON, Mr. Justice BEILFUSS, and Mr. Justice HEFFERNAN hold the first view above stated and would affirm the judgment. Mr. Justice HALLOWS, Mr. Justice WILKIE, and the writer of this opinion hold the second view, and would reverse.
By the Court. — Judgment affirmed.