The opinion of the court was delivered by: Legge, Justice.
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.
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.
"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.
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.
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.
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 ...