Schammel v. Schammel
Before: Belcher
Synopsis
Divorce—Custody and Education of Minor Children—Jurisdiction of Superior Court—Future Contingencies.—Under sections 138 and 139 of the Civil Code the court may make necessary or proper provision for the custody, care, and education of the minor children, and, where the divorce is granted for an offense of the husband, may compel him to provide for the maintenance of the children, and may from time to time modify its orders in these respects; but its jurisdiction to make such orders is limited to the conditions and circumstances existing at the time they are made, and the court cannot anticipate and provide for future contingencies.
Id.—Death of Mother—Appointment of Guardian for Child—Power of Court.—The court, in making its orders for the custody and support of a minor child, cannot anticipate that the mother may die during the minority of the child, and that a guardian other than her father may thereafter be appointed, and then proceed to direct that the allowance made to the mother for the support of the child shall be paid to such guardian.
Id.—Rights of Father—Obligation to Support Child.—Upon the death of the mother, the father becomes entitled to the custody of the child, and this right continues .until a guardian of her person is appointed, after which he is under no obligation to furnish support to' the child other than such as the law imposes upon him.
Belcher, C. The parties to this action were husband and wife, and were divorced by a decree entered therein on December 9,1887. The decree awarded to the plaintiff the custody of Etta Schammel, the minor child of the parties, and the defendant was “ ordered and decreed to contribute to the support and education of said Etta, the sum of fifteen dollars per month during the [260]period of her minority,” and “to pay said sum of money to the plaintiff, or to her order, or to the legal guardian of said minor, on the first day of every month for the time aforesaid.”
On May 5, 1890, on motion of the plaintiff, the allowance for the support of the minor was increased by order of the court to twenty-five dollars per month.
On March 27,1891, the plaintiff died, owning two lots of land, with houses thereon, in the city and county of San Francisco, one of which she gave to her said minor daughter, and the other to Ernestine Gallagher, a married daughter. The house and lot given to the minor daughter was worth about three thousand five hundred dollars, and when rented yielded about twenty-five dollars per month.
On June 12, 1891, an order was duly made and entered in the matter of the estate of Maria Schammel, deceased, allowing said minor out of said estate the sum of fifty dollars per month for her support, education, and maintenance, and on the same day Ernestine Gallagher was duly appointed guardian of her person and estate.
The defendant paid the allowance for his daughter regularly every month, up to and including the month of March, 1891, but thereafter neglected and refused to ■ make any further payments.
About a month after her mother’s death defendant saw his daughter, and requested her to go and live with him—he had then married again—but she refused to do so; and again in April, 1892, he saw her, and invited her to live with him, and make his house her home, but she still refused to do so.
In March, 1893, Ernestine Gallagher, as guardian of her sister Etta, applied to the court below for an order in the above-entitled action directing the clerk of the court to issue an execution against the property of the defendant for the aggregate of the sums ordered to be paid by him for the support of said Etta, but not paid. The application was heard, and in August following an [261]
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