McKay v. McKay

Citations

• 125 Cal. 65
• 57 P. 677
• 1899 Cal. LEXIS 801

Syllabus

<p>Divorce—Maintenance of Children—Omission in Decree—Subsequent Order—Jurisdiction.—In an action for divorce, where the custody of the children was awarded to the wife without any provision in the decree for their maintenance, the court, though having no jurisdiction to act subsequently .under section 139 of the Civil Code, has jurisdiction, under section 138 of that code, to give a subsequent direction “for the custody, care, and education of the children,” and to provide for the expenses reasonably to be incurred for their “care and education.”</p> <p>Id.—Construction of Code—Prospective Action.—The provisions of section 13S of the Civil Code are in their nature prospective; and the use of the term “direction” implies that the action of the court is to he limited to the “care and education” which the children are subsequently to receive under its direction.</p> <p>Id.—Limited Power of Court—Benefit of Children—Reimbursement of Past Expenses.—The jurisdiction retained by the court under section 138 of the Civil Code is to he exercised only in behalf of the children; and if they have been already sufficiently cared for by the voluntary act of the mother, or of other persons, the court is not empowered, in an order made for the first time after judgment, to compel the father to reimburse them for these past expenses.</p> <p>Ld.—Voluntary Expenses by Stepfather—Presumption—Reimbursement not Required.—Where it appears that subsequently to the decree and to the remarriage of the divorced wife, the children were received into the family of the stepfather, and the expenses of their care and education were voluntarily incurred by him, it must be presumed, under section 209 of the Civil Code, that he supported them as a parent, and they are not liable to him for their support. The father is not bound to reimburse the stepfather therefor; and the court cannot order such reimburse-' ment under section 138 of the Civil Code.</p>