Carson v. Korus, 16159
| Decision Date | 22 November 1978 |
| Docket Number | No. 16159,16159 |
| Parties | Marion T. CARSON, Independent Executor of the Estate of Julius B. Korus, Appellant, v. Mary Emma KORUS, Appellee. |
| Court | Texas Court of Appeals |
Mary Emma Korus, appellee, sued to recover child support payments from Marion T. Carson, appellant and Independent Executor of the Estate of Julius B. Korus. Appellee and Julius B. Korus were divorced in December of 1976, and Mr. Korus paid the child support called for under the divorce decree and property settlement agreement until his death on June 1, 1978. Thereafter, appellant qualified as independent executor of the Estate of Julius B. Korus, but did not make further child support payments. The divorce decree and property settlement agreement required payments of $250 per month per child for each of the three children until they shall reach the age of 18.
On June 30, 1978, appellee filed a motion in the original divorce case to modify the divorce decree requesting that temporary orders be issued to require the appellant to pay child support in the amount of $750 per month. Appellee also requested that upon final hearing of this motion an order to require the estate to make such child support payments be entered. On August 18, 1978, the court ordered that appellant pay $2,250 arrearages in child support pending final hearing of the cause. Appellant prosecutes this appeal to attack this order.
Appellant contends that (1) the court is without jurisdiction to entertain this motion because the suit is one to enforce an alleged contract not within the court's continuing jurisdiction defined in Section 11.05(a) 1 of the Texas Family Code and that (2) the trial court erred in not requiring appellee to post a bond.
Section 11.05(a) provides as follows:
Except as provided in Subsections (b), (c), and (d) of this Section, when a court acquires jurisdiction of a suit affecting the parent-child relationship that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 of this Code.
Tex.Fam.Code Ann. § 11.05(a) (Vernon Supp.1978). In addition, Section 11.11(c) provides as follows:
In a suit under this subtitle the court may dispense with the necessity of a bond in connection with temporary orders in behalf of the child.
Tex.Fam.Code Ann., § 11.11(c) (Vernon Supp.1978).
The question is whether the present action is a "suit affecting the parent-child relationship" within Section 11.05. We conclude that it is not such a suit.
Sections 14.05(d) and 14.06(d) provide respectively Unless otherwise agreed to in writing or expressly provided in the decree, provisions for the support of a child are terminated by the marriage of the child, the removal of the child's disabilities for general purposes, or the death of a parent obligated to support the child.
Terms of the agreement set forth in the decree may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as contract terms unless the agreement so provides.
Tex.Fam.Code Ann. §§ 14.05(d), 14.06(d) (Vernon 1975).
Paragraph VI of the property settlement agreement provides that "(T)his agreement shall enure to the benefit of and be binding upon the heirs, assigns, executors, administrators, and personal representatives of the parties." Appellee contends that this written agreement binds the estate to continue child support payments.
The case of Adwan v. Adwan, 538 S.W.2d 192 (Tex.Civ.App. Dallas 1976, no writ) is in point. In Adwan, the wife sued her former husband in a district court of Dallas County to enforce a property settlement agreement made between them at the time of their divorce. The husband contended that the trial court lacked jurisdiction of this suit under Section 11.05 of the Texas Family Code because the domestic relations court had...
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Huckeby v. Lawdermilk
...14.06, this is a suit to enforce a contract. He cites Adwan v. Adwan, 538 S.W.2d 192 (Tex.Civ.App.--Dallas 1976, no writ) and Carson v. Korus, 575 S.W.2d 326 (Tex.Civ.App.--San Antonio 1978, no writ), in support of his contention. A determination must be made as to whether the execution of ......
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Dorshaw v. Dorshaw, 2372
...agreement is not one brought under the Family Code. Instead, it is an action which must be brought under the common law. See: Carson v. Korus, 575 S.W.2d 326 (Tex.Civ.App.-San Antonio 1979, no Inasmuch as the agreement therein was not a court-approved contractual agreement, I concur with th......
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Elfeldt v. Elfeldt, 01-86-0405-CV
...and would be binding not only on the parties, but upon their heirs and legal representatives until fully discharged. See also Carson v. Korus, 575 S.W.2d 326, 328 (Tex.Civ.App.--San Antonio 1978, no writ). The circumstances in the instant case are similar to those set forth in Adwan, and ar......
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Lambourn v. Lambourn, B14-88-00902-CV
...of contract action, not a motion for enforcement. Adwan v. Adwan, 538 S.W.2d 192, 195 (Tex.Civ.App.--Dallas 1976, no writ); Carson v. Korus, 575 S.W.2d 326, 328 (Tex.Civ.App.--San Antonio 1978, no writ). See also Fullerton v. Holliman, 730 S.W.2d 168, 170-71, (Tex.App.--Eastland 1987, writ ......