Cuellar v. Cuellar

• Decision Date: 15 September 1966
• Docket Number: No. 219,219
• Citation: 406 S.W.2d 510
• Parties: Adelina Mayorga de CUELLAR, Appellant, v. Luis L. CUELLAR, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 510

406 S.W.2d 510

Adelina Mayorga de CUELLAR, Appellant, v. Luis L. CUELLAR, Appellee.

No. 219.

Court of Civil Appeals of Texas Corpus Christi.

Sept. 15, 1966.

Thomas G. Sharpe, Jr., of Hardy, Galindo & Sharpe, Brownsville, for appellant.

No briefs were filed in behalf of appellee.

OPINION

GREEN, Chief Justice.

As the appellee has filed no brief, we accept as correct the statements contained in appellant's brief relating to the facts and the record. Rule 419, Texas Rules of Civil Procedure; Gonzales v. Gonzales, Tex.Civ.App., 224 S.W.2d 520, writ ref.; Washington v. Clements, Tex.Civ.App., 399 S.W.2d 890, n.w.h., and cases there cited.

Appellee-defendant and appellant-plaintiff, formerly husband and wife, were divorced in the district court of Cameron County, Texas, in April, 1948. Plaintiff, the former wife, was granted custody of Lidia Cuellar, a child of this marriage, who at the time of the hearing in November, 1965, was 23 years of age. This suit involved a motion to amend the divorce judgment rendered in said cause to provide for custodial support payments for Lidia, pursuant to Article 4639a--1, Vernon's Ann.Tex.Civ.St., as enacted in 1961. Defendant, a resident of Porter County, Indiana, was served with non-resident citation on October 11, 1965, giving him 20 days notice of the hearing on the motion which was set for November 1, 1965. On this latter date, defendant, thru his attorney, filed a written answer containing certain special exceptions to plaintiff's pleading, and a general denial. None of these exceptions in any way attacked the jurisdiction of the court over the person of the defendant. Counsel for both parties and the trial court agreed, in open court on November 1, 1965, that the plaintiff would proceed to put on her testimony at that time, and that counsel for the defendant would be given three weeks, until November 22, 1965, to study the law and prepare his case, and amend his pleadings if he considered that necessary, before proceeding further. Under such agreement, plaintiff did introduce her evidence, after which the court recessed the trial until November 22nd.

On November 22, 1965, defendant filed what he denominated 'Defendant's First Amended Answer', in which he for the first time plead, under oath of his attorney, that he 'objects to the jurisdiction of the Court over his person on the ground that he is not amenable to process issued by the Courts of this State.' The trial court considered this as a proper plea to the jurisdiction of the court, and since the plaintiff's pleadings and the undisputed evidence showed that defendant was in fact a non-resident of Texas, and was served outside of the state, held that it had no jurisdiction of this case. This appeal is from such holding of no jurisdiction.

Art. 4639a--1, V.A.T.S., reads as follows:

'In addition to all other requirements, each petition for divorce shall further set out, if such is a fact, that (1) an unmarried child, born of the marriage sought to be dissolved, is physically or mentally unsound and requires custodial care, and (2) that such child cannot adequately take care of or provide for himself, and (3) that such child has no personal estate or income sufficient to provide for his reasonable and necessary care. If the Court shall find all of such has been proven by full and satisfactory evidence the Court may require and enforce support payments for such child, whether a minor or not, subject to the power and authority of the Court to alter, change, suspend, or otherwise revise its judgments as the facts and circumstances may require and in the manner required by law. Added Acts 1961, 57th Leg., 1st C.S., p. 135, ch. 31, § 1.'

The evidence showed without disputed that Lidia was an unmarried child born of the marriage of plaintiff and defendant, that she was permanently physically unsound and required custodial care, that she cannot adequately take care of or provide for herself, and that she has no personal estate or income sufficient to provide for her reasonable and necessary care. In fact, during the hearing the attorney for defendant judicially admitted that she is a person who needs custodial care, and that she had been an invalid ever since she was six months old. We feel that such undisputed testimony, together with the judicial admission of defense counsel made in open court, distinguishes this case from Aversa v. Aversa, Tex.Civ.App., 405 S.W.2d 157. There it was held that due to the lack of evidence that the 19 year old boy in question required 'custodial care', Art. 4639a--1 was not applicable to the fact situation presented. Plaintiff testified without contradiction that $100.00 per month is required for the custodial care of Lidia, and that plaintiff as her custodian now receives $32.00 per month from State Welfare. Plaintiff prayed that defendant be required to pay $68.00 per month for custodial care.

The trial court had jurisdiction of the subject matter of this motion, under the provisions of Art. 4639a--1, supra. The last sentence of said Article authorizes the trial court to alter, change, suspend or otherwise revise its judgments as the facts and circumstances may require and in the manner required by law. The motion of plaintiff conformed to the provisions of the statute. Matters of child support and enforcement of...