Hooten v. Hooten

Decision Date21 February 1929
Docket Number(No. 3591.)
PartiesHOOTEN v. HOOTEN.
CourtTexas Court of Appeals

Appeal from District Court, Hopkins County; Grover Sellers, Judge.

Suit by Alice Hooten, as next friend of her minor children, against J. A. Hooten. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Dial & Brim, of Sulphur Springs, for appellant.

R. D. Allen, of Sulphur Springs, for appellee.

HODGES, J.

The appellant and the appellee were formerly husband and wife. They were divorced in a suit brought by the wife some time during the year 1926. At the time of the divorce they had two children, both minors; one a girl, then about 17 years of age; the other a boy about 14 years of age. It appears that in the divorce decree no provision was made for the custody of the children or for their maintenance and support. By agreement, apparently, the children remained with their mother. This suit was filed by the appellee, Mrs. Hooten, against her former husband, as the next friend of her two minor children. The following excerpt from the amended original petition shows the nature of the suit and the purpose for which it was instituted:

"Alice Hooten, dismissing in this cause, upon demurrer of defendant, her suit, without prejudice, wherein she sues in her own behalf, here amends, after leave of the Court being granted, the original petition, filed herein on the 10th day of August, 1927, and here prepares and files the First Amended Original Petition, and so amending says:

"That she, Alice Hooten, resides in Hopkins County, Texas, and brings this suit as the next friend of her two minor children, Jewell Hooten, a girl, eighteen years of age on the 25th day of July, 1927; and Dennis Hooten, a boy, who was fifteen years of age on the 22nd day of November, 1926, plaintiffs, against J. A. Hooten, defendant; all of the above named parties residing in Hopkins County, Texas, said minors residing with their said mother.

"That said above named minors are the children of plaintiff as next friend and defendant, who were divorced from the bonds of matrimony by the District Court of Hopkins County, Texas, on the 25th day of August, 1926, cause No. 7326, Alice Hooten-vs-J. A. Hooten, wherein it was agreed that said Dennis Hooten remain in the custody of said mother, Alice Hooten, plaintiff as next friend herein; the custody of said minor Jewell Hooten not being provided for in such divorce proceedings, but also remained in the custody of her mother, Alice Hooten, till the present time; and this suit is brought to recover expenditures in maintenance and education, care and comfort of such minors from said 25th day of August, 1926, to the filing of this suit on the 10th day of August, 1927; and for the recovery of a reasonable amount reasonably necessary, considering the condition and station in life of all the parties herein, for such maintenance, education, care and protection of such minors from the said time of the bringing of this suit up to their majority age; for all which said defendant in law is liable."

The petitioner then alleges that the children have no income of their own, and that she, their mother, has an income sufficient only for her own support. She then proceeds to list in detail a number of articles classed as necessaries which had been furnished the children by relatives and herself since the divorce was granted, aggregating in value the sum of $752.17. She specifies the amount of money that will be required in the future for the support and education of the children during their minority; that amount is placed at $____. The petitioner also alleges that the defendant owns a large amount of valuable real estate from which he derives an annual income, and is amply able to provide for the support and maintenance of the children. The petition then concludes:

"And this next friend further alleges and asks, under all the pleadings in this case, that this court declare a lien upon all the property of the defendant, especially upon the real estate, to secure the payment of any judgment that might be rendered herein; and, under all such facts herein, that the defendant be enjoined from selling any of the above described property of every kind until his obligation under the law is satisfied towards his said minor children.

"This next friend further represents to the court that in order to enforce the rights of these minors she was compelled to employ an attorney to represent them in this cause and is entitled to a fee of two hundred and fifty dollars, which is fair and reasonable, or some other sum, more or less, as the Court may determine to be reasonable.

"Wherefore this next friend prays the Court, the defendant having heretofore answered herein, that upon final hearing hereof this Court render judgment for the sums of money herein pleaded for the maintenance and education of such minors, or such sum, more or less, as this Court may deem adequate for such purpose; and that a lien be declared upon all the property of the defendant to secure the payment and enforcement of any judgment that may be rendered herein; and that he be enjoined from selling or, in any manner, disposing of any of the above mentioned property pending this cause and until his obligation, under the law, is fully discharged towards such minors; and all and every order and writ of this Court necessary, proper or required for the government and disposition of the persons and rights of minors as provided and contemplated by the Constitution and laws of Texas; and for all and every relief known to law or equity, or discoverable therein; for said attorney's fees and all costs of this Court, and execution wherever necessary."

The appellant answered by general demurrer and special exceptions and a general denial. He also insisted that the court had no jurisdiction to grant the relief prayed for in appellee's petition.

A jury was waived, and the case was submitted to the court, who rendered a judgment granting, in part, the relief prayed for. In the judgment entered the court recites the following findings: That the...

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11 cases
  • Mills v. Habluetzel
    • United States
    • U.S. Supreme Court
    • April 5, 1982
    ...extends beyond the dissolution of marriage, Code § 14.05, regardless of whether the parent has custody of the child, Hooten v. Hooten, 15 S.W.2d 141 (Tex.Civ.App.1929), and may be enforced on the child's behalf in civil proceedings. Code § 14.05(a). Prior to our decision in Gomez, Texas rec......
  • Gomez v. Perez
    • United States
    • U.S. Supreme Court
    • January 17, 1973
    ...duty).1 That duty extends even beyond dissolution of the marriage, Tex.Rev.Civ.Stat., Art. 4639a (Supp.1972—1973); Hooten v. Hooten, 15 S.W.2d 141 (Tex.Civ.App.1929), and is enforceable on the child's behalf in civil proceedings and, further, is the subject of criminal sanctions. Tex. Penal......
  • Brillhart v. Brillhart
    • United States
    • Texas Court of Appeals
    • November 8, 1943
    ...the age of sixteen years and charges that such is not authorized by the law in a hearing such as this. In the case of Hooten v. Hooten, Tex. Civ. App., 15 S.W.2d 141, 143, affirmed by the Supreme Court in Id., 120 Tex. 538, 40 S.W.2d 52, the court said: "It is now the settled law of this st......
  • Miller, In Interest of
    • United States
    • Texas Court of Appeals
    • July 24, 1980
    ...Code Ann. sec. 4.02 (1979). Though this duty extends beyond dissolution of the marriage (Tex.Family Code Ann. sec. 14.05; Hooten v. Hooten, 15 S.W.2d 141 (Tex.Civ.App.-Texarkana), aff'd at 120 Tex. 538, 40 S.W.2d 52 (1931)); is enforceable on the child's behalf in civil proceedings; is the ......
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