LOUISE COPE SANDERS (OWEN), Respondent,
v.
WILSON H. SANDERS, Appellant.
17229
Supreme Court of South Carolina.
December 3, 1956.*264 Messrs. Blatt & Fales, of Barnwell, for Appellant.
T.B. Bryant, Jr., Esq., of Orangeburg, for Respondent.
The order of Judge Brailsford requested to be reported follows:
By a decree dated December 15, 1953, the defendant was awarded a divorce against plaintiff on the ground of desertion. The custody of a minor son was awarded to defendant and the custody of a minor daughter was awarded to plaintiff and defendant was required to pay $50.00 monthly for the support of the daughter.
*265 He has now filed a petition on which he moves to be relieved of these payments. The rationale of the petition is that the combined incomes of his former wife and her present husband and their residence with her wealthy parents, as compared with his circumstances, make the resources available for the support of the daughter disproportionate to those available for the support of the son.
Petitioner is employed by the town of Barnwell at a salary of $275.00 per month. He, his mother and son live in one of three dwellings owned by them in the town of Barnwell. They derive a "net income of approximately $500.00 per year" from the other two. He owns a farm from which he has "been unable to realize any income in recent years," although he was formerly engaged exclusively in farming.
The petition recites:
"In view of the joint income of Mr. and Mrs. Owens, and the fact that they live with Mr. Cope, I feel that it would be only fair if the Court would relieve me of the payment of the $50.00 per month to my wife for my daughter's support, so that I can use this $50.00 to provide my son with a few things that he does not have, and I can try to save enough money to help him go to college. I do not want to stop paying the $50.00 per month if my daughter is to be deprived of anything she needs but it seems extremely unfair to me to have so much in a material way available for one of my children and so little for the other. As I stated, I love both of my children, one equally as well as the other, and the only reason I want to discontinue these monthly payments is so that my son can have a few things he needs that he does not now have, since I know that with the income available for my daughter's support, she will be liberally and adequately provided for."
The well drafted petition and its forceful presentation by counsel have a strong appeal. After more than usual deliberation, I have reluctantly concluded that it must be denied.
The common-law rule is that the support of minor children is the primary obligation of the father. This rule was *266 carefully preserved by the legislature when equal rights were conferred upon the mother respecting custody, etc. Section 31-51, Code of 1952.
Diligent counsel has cited no precedent for, in effect, relieving the father of this primary liability as to one child, so that more of his means will be available for the support of another. In the absence of necessity, of which no claim is made, I am of the opinion that this cannot be done. It is of no legal consequence that there are others who are able to and presumably would assume the burden should the father be relieved of it. Compare cases reviewed in annotation 81 A.L.R. 887. It may be that in a proper case the wife could be required to assume the support of a child as a condition of awarding her custody. But that was not done and there is no issue as to custody before the Court.
Motion refused.
December 3, 1956.
LEGGE, Justice.
In a divorce action between the parties hereto the decree, dated December 15, 1953, awarded to appellant custody of their son, Frank Wilson, then aged fourteen, and to respondent custody of their daughter, Carole, then aged ten years, and directed appellant to pay to respondent $50.00 per month for the support and maintenance of their said daughter. Respondent having remarried in December, 1955, and having thereafter refused appellant's request that he be allowed to discontinue these payments, he moved before the Honorable J.M. Brailsford, Jr., Judge of the First Judicial Circuit, for modification of the decree by relieving him of further obligation to make such payments. By order dated May 23, 1956, to be reported herewith, Judge Brailsford denied the motion. Appeal here is from that order.
Appellant first contends that Judge Brailsford, in refusing the motion, did so not in the exercise of his discretion, but because he considered himself bound to do so because of the common-law rule that support of minor children is *267 the primary obligation of the father. We do not so interpret the order. It was based, as we view it, upon the opinion of the circuit judge that the factual showing, in which necessity for the relief sought was absent, was insufficient to warrant the court in relieving appellant of his legal obligation to support his minor daughter.
It appears from appellant's affidavit upon which his motion was based that his former wife is now employed as a school teacher, as is her present husband, and that they and appellant's minor daughter now live with respondent's father at little or no cost to them for room and board; and appellant further alleges that he is advised that the combined annual income of respondent and her present husband is between seven and eight thousand dollars. It further appears from his affidavit that appellant is in the employ of the Town of Barnwell at a salary of $275.00 per month; that he has a farm, from which he has been unable to realize any income in recent years; and that he and his minor son live with his mother in one of three residential properties owned by appellant and her, the other two being rented and yielding a net income of approximately $500.00 per year.
It is not contended that appellant's income is less than it was when the decree of December 15, 1953, was issued, or that it is insufficient for his support and that of his two children. His claim for relief is based, in substance, upon the fact that since his wife's remarriage her income, together with that of her present husband, is such that they can support appellant's daughter on a scale somewhat higher than that on which he can maintain his son.
In addition to appellant's affidavit before mentioned, the record before the circuit judge in support of the motion included two letters from appellant's counsel to respondent, dated respectively January 20 and 30, 1956. The following is from the letter of January 20:
"Wilson has come in to see us regarding the continuation of the $50.00 monthly payment he has been making to help you with Carole's support. In view of your recent *268 marriage we feel that since both you and Mr. Owens are working with only Carole to support that it is only fair that Wilson discontinue these monthly payments. * * * I hope you understand that Wilson does not want to do anything that would deprive Carole in any way of what she needs, but it is my thought that if he did not have to send this $50.00 each month to you now, he would give Frank Wilson a few more things that Frank Wilson needs. I know you realize that with Frank Wilson getting older the demands are heavier on Wilson".
And the following from the letter of January 30:
"I have your letter of January 28th regarding the monthly support that Wilson has been sending for Carole. Your sentiments expressed in your letter will in no way affect Wilson and Mrs. Sanders as their wants are simple and they have somehow managed to get along on very little income. However, as I told you, Wilson does want to try to do more for Frank Wilson and give him more in a material way than he is able to give Frank Wilson at present. I am sure you know that Wilson cannot give Frank Wilson many luxuries with the situation as it exists at present. I know, too, that Wilson wants to try to save a little something so that Frank Wilson can, with a little help from all of us, go to college when he finishes school".
As a general rule, remarriage of the divorced wife is not of itself ground for reducing the amount required by the decree to be paid to her by her former husband for the support of their minor child. 27 C.J.S., Divorce, § 322 b, p. 1240 et seq.; Dull v. Dull, 1920, 188 Iowa 941, 176 N.W. 953; Rockwood v. Rockwood, 1925, 65 Utah 261, 236 P. 457. Nor does the betterment of the divorced wife's financial condition as the result of her remarriage require such modification of the decree where, as here, there is no proof of assumption by the second husband of obligation to support the child or children of the first marriage.
*269 It does not appear to us that the circuit judge, in denying appellant's motion, abused his discretion; and the order appealed from is accordingly affirmed.
STUKES, C.J., and TAYLOR, OXNER and MOSS, JJ., concur.