Hilleware v. Hilleware
Hilleware v. Hilleware
Opinion of the Court
In 1915, the plaintiff in this action obtained a decree of divorce from the defendant, which decree awarded her certain property and the custody of their daughter, a child then of the age of fifteen years, the decree being silent as to any provision made for the maintenance of the child. The decree of divorce was appealed from by the defendant, and the judgment of the lower court was affirmed by this court. This action was commenced by the plaintiff, who has, since the decree of divorce, borne the expense of the support of the child, asking a judgment in a sum sufficient to cover one-half of the expenses of such support during the minority of the child.
It is contended by the defendant that, through inadvertence and mistake, the decree in the original divorce action did not express the true decision arrived at by the trial court, and that it was intended that the property awarded to the plaintiff in that action should be used by her in supporting the child, and that the decree should have so provided. This matter was plead as the first affirmative defense. The second affirmative defense was that the matter of the support of the child was res judicata, having been a matter involved in a prior suit.
We have held in Gibson v. Gibson, 18 Wash. 489, 51 Pac. 1041, 40 L. R. A. 587; Ditmar v. Ditmar, 27 Wash. 13, 67 Pac. 353, 91 Am. St. 817; Hector v. Hector, 51 Wash. 434, 99 Pac. 13, that, where the decree of divorce does not provide for the maintenance of a child, a separate action can be waged by the mother to whom the custody of such child had been granted, for the purpose of recovering from the father his share of the expense of the maintenance of the minor during its minority. The defendant, recognizing this rule by the affirmative defense interposed by him in this action, attempts to escape its operation by offering to show that
The judgment of the lower court will be affirmed.
Reference
- Full Case Name
- Mary Hilleware v. Rene Hilleware
- Cited By
- 5 cases
- Status
- Published
- Syllabus
- Divorce (50, 83) — Collateral Attack — Support of Child. Where a decree of divorce did not provide for the maintenance of a child awarded to the mother, and she waged a separate action to recover therefor, a defense therein that the original decree did not properly express the conclusion of the court, asking modification thereof, is a collateral attack upon that decree and cannot be entertained.