On Petition for Rehearing. It is believed by a majority of the court that the motion for rehearing should be overruled. Appellant urges that his divorced wife may not, in this case, recover of him the expenses, either all or onehalf of same, incurred by her for the support of the minor children. There is comprehended in the judgment of the trial court the finding of fact, which has ample support in the evidence, that the money expended by the wife was for the supply of necessaries for the minor children and was confined to a reasonable amount. And it was proven that in the divorce proceedings the custody of the minor children was awarded to the wife. An incidental decree, it appears, undertook to make provision for the future support of the children against each of the parents through payment of a monthly stipend. It was proven, though, that upon appeal the incidental decree was held void and inoperative, upon the ground of lack of power in the court in a statutory proceeding for divorce to make incidental decrees against the parents in personam for payment of a monthly stipend in future support of their children. Gully v. Gully, 173 S.W. 1178. The decree, therefore, must be regarded, it is thought, as having, in legal effect, omitted to make any provision for the future support of the minor children of the marriage. And, in view of the facts, the principal question for decision is one of law, as to the effect of a decree giving custody of the children to the wife, yet omitting to provide for their support. Some of the cases rule that a divorce decree, awarding custody of the children to the mother, even though making no provision for their support, has the legal effect to relieve the father of liability for the reasonable support of the children while in the mother's custody. The majority of the cases, though, as stated by Justice HODGES, hold that where the decree of divorce makes no provision for the minor children, the father is not relieved of his obligation to support them, and the mother, who has the custody of the children, may recover from the father a reasonable sum for necessaries furnished. Pretzinger v. Pretzinger,45 Ohio St. 452, 15 N.E. 471, 4 Am. St. Rep. 542; Evans v. Evans,125 Tenn. 112, 140 S.W. 745, Ann.Cas. 1913C, 294; Brown v. Brown,132 Ga. 712, 64 S.E. 1092, 131 Am. St. Rep. 229; Gilley v. Gilley,79 Me. 292, 9 A. 623, 1 Am. St. Rep. 307; Ditmar v. Ditmar, 27 Wash. 13,67 P. 353, 91 Am. St. Rep. 817; Spencer v. Spencer, 97 Minn. 56,105 N.W. 483, 114 Am. St. Rep. 695, 7 Ann.Cas. 901; Graham v. Graham,38 Colo. 453, 88 P. 852, 8 L.R.A. (N. S.) 1270, 12 Ann.Cas. 137, and others. It is believed that the rule formulated in these cases cited above stands upon a correct legal principle, which is applicable and should govern the decision of the instant case. By the commonlaw the parents were under legal obligation to support, protect, and educate their children. 1 Cooley's Blackstone (4th Ed.) p. 394; 2 Kent, Con. 191; 1 Parson, Con. 251, approved in Fowlkes v. Baker, 29 Tex. 135, 94 Am.Dec. 270. Divorce and separation of the parents do not, it must be admitted, operate and have effect to destroy the relation *Page 562 of parent and child. And there is no statute which changes, after divorce and separation, the common-law rule respecting the obligation of the parents to support their children. Though by the common law the primary duty of providing this support was cast upon the husband during the marriage relation, it was only so because of the disabilities of coverture attaching to the wife. Yet the divorce operates to remove the disabilities of coverture, and consequently to cast and devolve joint and equal duties upon the parents thereafter respecting the support of their children, unless modified by the terms of the decree. And there is clear legislative recognition of the equality of the obligations of the parents after a divorce had been granted. The wife holds with the husband an equal right to the guardianship of the children. Article 4069, Vernon's Sayles' Stat. And no distinction is made between the property of the wife and husband in fixing liability for the support of the children. Article 4634, Vernon's Sayles' Stat.; Rice v. Rice, 21 Tex. 58; Fitts v. Fitts,14 Tex. 443. And the simple fact that the mother has been awarded custody of the children does not, in legal principle, operate and have the effect to change this rule and relieve, by adjudication, the father of any further obligation of support on his part. Bemus v. Bemus, 133 S.W. 503. The chief consideration of her designation as custodian is the personal welfare of the minor children, and the right to this care and control of the children is the extent of the adjudication between the parents. There is not involved nor determined in such simple decree the question of liability of either parent, as between themselves or to third parties, for the future support of the minor children. Hence the decree awarding custody could not legally avail, in defense, as a plea of adjudication against further liability. Therefore, as the parents after divorce become jointly and equally obligated to reasonably maintain their children during nonage, and as the decree of custody in favor of the wife does not undertake nor legally operate to discharge their obligation by making provision for the children, it is not perceived upon what legal principle the father could predicate a plea in bar, or a want of any liability, or a defense of satisfaction and discharge, as a matter of law, of his part of the legal obligation. Payment or provision by the father, as a fact, is not involved in the instant case.
The mother and father after divorce being jointly and equally obligated to reasonably maintain their dependent children of nonage, the mother may not, in this case, it is believed, recover the whole of the expenses paid, but, having paid the whole of such expenses, may recover one-half thereof, which was the excess paid by her beyond her equal share. It is a familiar principle that when two persons are jointly and equally liable for the same debt, and one is compelled to pay the whole of it, he may have contribution from the other to obtain from him the payment of his due proportion or share. The right to contribution in the case of joint debtors depends on the fact of common indebtedness, and may be obtained on the basis of the amount actually expended is reasonably done. Pleading the facts, as appellee does, entitles her to recover what she may legally show herself entitled to, and such pleadings would not be insufficient to support a judgment for one-half of the sum sued for.
If it had appeared, which it did not, that a child was sufficiently earning its own support, it may be that the father could defend against liability for its support; for in that instance the earnings of the child, legally belonging to the parents, but collectible by the custodian, would be regarded as furnished jointly by the parents, and to that extent be an actual discharge of the obligation.
It is insisted by appellee that, as the custody of the minor children devolves upon the mother much personal care and attention that is of value in the maintenance of such children, such valuable services may be regarded as performance in kind of the mother's portion of the obligation of maintenance, and the father is only bearing with the mother the joint obligation of maintaining the minor children when he provides reasonably for their necessary support. Of course that contention pertains to the question of whether or not the recovery by appellee of the whole amount of the present judgment should be sustained. It is thought the present record does not sufficiently authorize the appellee to recover except one-half of the proven expenditures.
Motion overruled.