Brady v. Hyman

• Citation: 230 S.W.2d 342
• Decision Date: 10 May 1950
• Docket Number: No. 12090,12090
• Parties: BRADY et al. v. HYMAN.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 342

230 S.W.2d 342

BRADY et al. v. HYMAN.

No. 12090.

Court of Civil Appeals of Texas, San Antonio.

May 10, 1950.

William E. Remy, San Antonio, for appellants.

David A. Grose, Alice, for appellee.

NORVELL, Justice.

On November 25, 1949, the Hon. Raeburn Norris, sitting as special judge of the District Court of Jim Wells County, Texas, ordered a prior decree of said court, dated February 27, 1946, modified so as to reduce the child support payments provided for in the original decree, from $150 per month to $50 per month. This action was taken upon motion of Vance Hyman, the father of the minor, Blanche Kay Hyman. Kathryn Brady, the mother of the child and former wife of Vance Hyman, has appealed.

By the 1946 decree, Mrs. Brady, then Mrs. Hyman, was granted a divorce from Vance Hyman and the custody of the minor was awarded to her, subject to the father's right to keep the child during the months of June, July and August, should he have a suitable place for the child to stay.

Mrs. Brady here contends that the child support provisions of the decree were based upon a contract, and that the court erred in attempting to modify or change these contractual provisions. She also contends that the action of the court in reducing the award is not supported by the evidence.

In two recent cases, Plumly v. Plumly, Tex.Civ.App., 210 S.W.2d 177, and Mobley v. Mobley, Tex.Civ.App., 221 S.W.2d 565, this Court set forth the rules applicable to a decree of this kind which is in the nature of a contract and also posesses certain qualities of a judgment. Such a decree, insofar as it is based upon Article 4639a, Vernon's Ann.Civ.St., and is enforcible by contempt proceedings, may properly be modified by a subsequent decree of the court. Ex parte Birkhead, 127 Tex. 556, 95 S.W.2d 953; Townsend v. Townsend, Tex.Civ.App., 115 S.W.2d 769. However, an agreement to pay a certain sum of money per month for the support of a child is enforcible as a contract and entitled to the ordinary processes of laws provided for the enforcement of contractual obligations. The fact that the agreement is recorded as part of a judicial decree does not change the rule. Snipes v. Snipes, Tex.Civ.App., 174 S.W.2d 741.

A contract was the basis of the property settlement and the child support provisions contained in the 1946 divorce decree. The trial court accepted appellee's contention that this agreement simply provided that the trial court could provide for the payment of $150 per month for child support, and that such amount could be changed from time to time as the court saw fit. The contention of appellant, on the other hand, was that the agreement to pay $150 per month for child support was an absolute contractual obligation adopted as a part of a property settlement agreement, and hence enforcible as a contract.

In view of these conflicting contentions, it is necessary to examine the contract and decree in some detail. The written agreement of the parties consists of a preamble and eight numbered paragraphs. It is recited in the preamble that: 'Whereas, certain disputes and unhappy differences have arisen between First Party (Vance Hyman) and Second Party (Kathryn Hyman), for which reasons said parties have consented and agreed to live separately and apart from each other and are desirous of dividing and partitioning the community property of the parties hereto and therefore enter into the following agreement in connection therewith:'

The contract then provides for the division of various properties owned by the parties. Paragraph 'V' relates to child support and provides that: 'It is further understood and agreed that First Party agrees and hereby consents to the awarding of the care, custody and control of the minor daughter of First Party and Second Party, to-wit, Kay Hyman, to Second Party in the divorce decree, if entered in said cause above referred to, provided that such decree shall provide that First Party shall have the right to keep said minor child with him from the 31st day of May to the 1st day of September of each year after said divorce shall have been granted, provided that First Party shall have a suitable place and circumstances for the maintenance, care and custody of said minor child. First Party further agrees and consents to said decree providing for payment by him of the sum of One Hundred Fifty ($150) Dollars per month to Second Party for the maintenance, care, control and education of said minor child except during the period of time during which said minor child shall be with First Party under the terms of said order of said Court.'

The decree contained the following recitations and provisions: 'After hearing the pleadings, evidence, argument of counsel and agreement of the parties, the Court is of the opinion and finds that this Court has venue of this cause; that plaintiff is entitled to a divorce from the defendant; that plaintiff and defendant have one child who is now living, to-wit: Blanche Kay Hyman, a girl, now seven (7) years of age; that plaintiff and defendant have entered into an agreement respecting their community property rights acquired during their marriage, division of custody of their minor child and child support, said agreement being as follows, to-wit:'

At this point the agreement of the parties was copied into the judgment. Thereafter the decree provided that,

'It...