Dittrich v. Gobey

Citations

• 119 Cal. 599
• 51 P. 962
• 1898 Cal. LEXIS 680

Syllabus

<p>•Contract between Divorced Parents—Custody op Daughter by Father-Return to Mother at Majority—Liquidated Damages—Void Stipulation.—A contract entered into between divorced parents by the terms of which the custody of a minor daughter, which had been awarded to the mother, was transferred to the father, who agreed to bear the expenses of her support and education until she reached the age •of eighteen, and then to return her to her mother, and, in case of violation of any provision of the contract by him, agreed to restore the daughter to her mother free of expense, and for any failure to do so to become liable to the mother in the sum of one thousand dola-s as liquidated damages, if construed as importing anything more than an agreement to allow and afford facilities to the daughter to return to the mother at the age of majority, if she chose to do so, and as imposing an unconditional obligation to return her to her mother at the age of eighteen at all events, is to that extent void, and the stipulated damages cannot be recovered for its breach.</p> <p>Id.—Stipulation Infringing Personal Liberty. — The right of freedom from personal constraint is perfect at the age of majority, and no parent has a right to the custody of a child thereafter; and a stipulation to restore a daughter to the custody of a mother at the age of eighteen, nolens volens, is as much a contract to infringe the personal liberty of the daughter as if the period fixed had been twice or thrice that age, and is unlawful.</p> <p>Ed.—Contract not Alternative.—A contract in the alternative when not in terms providing otherwise, allows the right of election to the party on whom rests the obligation of performance; and there being nothing in the language of the agreement indicative of a purpose to allow the father to choose whether he would restore the child or pay a pecuniary mulct instead, and no option to pay the penalty and be rid of the obligation to return the custody of the daughter being permi