Belstrom v. Belstrom

• Decision Date: 17 October 1940
• Docket Number: No. 11060.,11060.
• Citation: 144 S.W.2d 614
• Parties: BELSTROM v. BELSTROM.
• Court: Texas Court of Appeals

144 S.W.2d 614

BELSTROM v. BELSTROM.

No. 11060.

Court of Civil Appeals of Texas. Galveston.

October 17, 1940.

Rehearing Denied November 14, 1940.

Appeal from District Court, Harris County; Norman Atkinson, Judge.

Action by Wallace A. Belstrom against Annie B. Belstrom for reduction of payments to be made under divorce decree for the support and maintenance of minor children of the parties. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

J. S. Bracewell, of Houston, for appellant.

Lawler, Wood & Childress, Albert J. DeLange, Frank A. Stamper, Robert P. Beman, Jr., and Emory T. Carl, all of Houston, for appellee.

MONTEITH, Chief Justice.

This is an appeal from a judgment of the 11th district court of Harris County denying an application of appellant, Wallace A. Belstrom, for a modification of the terms of a divorce decree which provided for the payment by him of certain sums for the support and maintenance of his two minor daughters.

Judgment in the original action for divorce, which was brought by appellee, Annie B. Belstrom, was rendered on June 21, 1937. It granted appellee a divorce, awarded her the custody of their two minor daughters and provided that appellant should pay to appellee the sum of $150 per month for their support and maintenance until the older daughter, Margaret, married or reached the age of 21 years, after which the amount to be paid for the support of the younger daughter, Bettie Jane, should be $75 per month until she reached the age of 21 years or married. It provided that said payments should continue until changed by written agreements of the parties or by a decree of court, and that if, by reason of decreased financial ability of defendant, a decrease in such allowance should be reasonably necessary, then such allowance, by written agreement of the parties, might be changed from time to time to provide the proper increase or decrease of said payments, and that if said parties did not agree to a modification of said decree that then the amount of such allowance should be fixed by order of the court on proper application of either party.

This decree was based, except for the divorce feature, on a contract entered into by the parties prior to the rendition of the original divorce decree. The provisions of the contract with respect to the custody and care of the children, and the payments of the amounts for their support, are set forth in the decree in the same language as in the contract.

A supplemental agreement was made on July 9, 1937, and on October 13, 1937, appellant brought an action attacking the first judgment. A decree was entered in this action by agreement of the parties confirming the original decree in all respects.

The present action was filed by appellant on August 3, 1938, seeking to reduce the payments to be made under said decree for the support and maintenance of said minor children. Appellant alleged that at the time of the rendition of the original decree he had an earning capacity of $1,000 per month; that at the time of the filing of said action his earning capacity would not exceed $3,000 per year; that for several months he had expended more than $150 for the maintenance and education of his older daughter and that it would be inequitable to require him to contribute anything to the support of his youngest daughter while he was bearing such expenses for the support and maintenance of the older daughter. Appellee, by answer sought an order for contempt and for attorney's fees.

It was admitted by counsel for appellant that he had sufficient liquid assets to care for the children in such manner as the court might direct.

In a trial before the court, judgment was rendered awarding appellee judgment in the sum of $930.

The court, in its judgment, ordered appellant to pay to appellee the sum of $75 per month for each of said daughters, except that during such months as appellant might have the care and custody of Margaret Belstrom, by consent of appellee, the said payment of $150 should be reduced by $75, leaving a balance of $75 per month which appellant should pay monthly to appellee for the support and maintenance of Bettie Jane Belstrom.

Findings of fact were filed by the court at the request of appellant. Said findings were excepted to by both parties.

The court found, in effect, that the provision in the original decree providing for payments of $150 per month to appellee for the support of said two minor daughters contemplated and provided that $75 per month should be payable on account of each of the daughters severally, subject to the right of the parties to increase the payments in case the needs of the daughters were greater, and to diminish them in case appellant was unable to pay that amount. The court found:

"That it was not contemplated nor provided that said amounts should be diminished unless, on account of greatly changed financial circumstances it should be impossible for Mr. Belstrom to pay said amount.

"That such provisions are reasonable with regard to each of the children and a minimum of $75 per month should be paid by Mr. Belstrom to Mrs. Belstrom on account of the education, maintenance and support of each of them. Mr. Belstrom is amply able to pay said amounts without any financial embarrassment whatsoever."

The court found that the terms of said decree providing for payments to appellee for the support and maintenance of said two minor daughters were based on a contract by the parties on full, adequate and valuable consideration; that there was no ground for change of the contracts and decrees theretofore entered; that the failure of appellant to make certain back payments for which judgment was rendered in favor of the appellee may have been induced by statements made by Margaret Belstrom to him to the effect that appellee would not enforce the provisions of the decree with reference to the payment for her (Margaret Belstrom's) support and maintenance. The court found, however, that appellee had not waived any of the provisions of said contract or decree or any of her rights thereunder and that she was entitled to the relief decreed and that appellant was not entitled to any change of the decrees. He found, however, that appellant was not in contempt; that no grounds for...