Opinion
11-25-1905
STATE v. REDMILE.
Daniel O. Hastings, Deputy Atty. Gen., and Harry P. Joslyn, for the State. L. Irving Handy and Herbert L. Rice, for defendant.
Proceedings against Alfred A. Redmile, Jr., to compel him to support an infant child. Order for support granted.
Argued before LORE, C. J., and SPRUANCE and GRTJBB, JJ.
Daniel O. Hastings, Deputy Atty. Gen., and Harry P. Joslyn, for the State. L. Irving Handy and Herbert L. Rice, for defendant.
This was an application of Effie Redmile to compel Alfred A. Redmile, Jr., to support his minor child, after the Superior Court had granted a decree divorcing the prosecuting witness from the defendant, and awarding to said prosecuting witness the custody of said child.
Mr. Handy, for defendant, produced the decree of the Superior Court divorcing the prosecuting witness from the defendant a vinculo matrimonii, and awarding the care and custody of their child to said prosecuting witness. He moved to dismiss the case.
This is a proceeding in the Court of General Sessions under chapter 230, 18 Laws Del. (Revised Code 1852, amended in 1893, p. 971), to compel defendant, the father, to provide for the support of his child, the care and custody of whom has been awarded to the mother by the Superior Court in divorce proceedings. In State v. Rogers, 2 Marvel, 439, 43 Atl. 250, it was held by the court that this statute was applicable to the case of a father divorced by legislative enactment. But in that case there was no other remedy to secure father's contribution to support minor children. In the case of divorce by Superior Court the law provides that "the court shall take such order for the distribution, care, and maintenance of the children, as is just and reasonable, and may revise and charge such order as occasion may require." Rev. Code 1852, amended in 1893, p. 598, c. 75, § 11. The Superior Court has therefore assumed jurisdiction of the whole question of the maintenance of this child. The Court of General Sessions should not interfere therewith in this summary way under this semipenal statute. The prosecuting witness, if entitled to contributionfrom the defendant for the support of this child given into her care and custody by decree of the Superior Court, should file her petition in the Superior Court asking said court to revise and charge its order in the matter.
GRUBB, J. Each of the two different statutes gives to each court respectively—that is, to the Court of General Sessions and to the Superior Court—jurisdiction to provide for the maintenance of minor children in such cases as this. The only question is whether the later maintenance act, now before this Court of General Sessions, should have any operation whatever here. We have here a case in which the Superior Court made provision for the custody of the minor child, but made no provision for the maintenance of said child. The Superior Court, therefore, took jurisdiction of the question of custody, but not of the question of maintenance. There is a difference between custody and maintenance. Where two courts have concurrent jurisdiction, the one that first takes jurisdiction ousts the other. Therefore, as the Superior Court has not taken jurisdiction of the question of maintenance, but only of the question of custody, it seems to me that the Court of General Sessions may properly take jurisdiction of the question of the maintenance of the child.
LORE, C. J. The later act, which is more ample and complete than the earlier one, lays its hands on the parent and keeps him within the jurisdiction of the court until the question is settled. The other one would not. We think this later statute covers this case, and that the Jurisdiction of the court of General Sessions is not ousted by the decree of divorce of the Superior Court referred to, which leaves the maintenance of the children still open.
We therefore order that the defendant pay to the prosecuting witness, for the support of said minor child, the sum of $30 on December 15, 1905, and $10 per month thereafter on the 15th day of each month, and that he enter into bond in the sum of $500 for the faithful compliance with said order.