Cunningham v. Cunningham

• Decision Date: 10 June 1931
• Docket Number: No. 5006.,5006.
• Citation: 40 S.W.2d 46
• Parties: CUNNINGHAM v. CUNNINGHAM et al.
• Court: Texas Supreme Court

Page 46

40 S.W.2d 46

CUNNINGHAM v. CUNNINGHAM et al.

No. 5006.

Supreme Court of Texas.

June 10, 1931.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by Rozelle Cunningham and others by their next friend against John Cunningham. Judgment for the defendant was reversed by the Court of Civil Appeals (299 S. W. 483), and defendant brings error.

Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed.

Benson & Benson, of Bowie, for plaintiff in error.

Donald & Donald, of Bowie, and Spencer & Jameson, of Montague, for defendants in error.

GREENWOOD, J.

The Court of Civil Appeals, in an admirable opinion by Mr. Justice Dunklin (299 S. W. 483), states the nature and result of this suit as follows.

"Rozelle Cunningham, a girl nine years of age, Cathleen Cunningham, a girl seven years of age, and Weldon Cunningham, a boy four years of age, are the children of Mrs. Toria Cunningham and John Cunningham, her divorced husband. The mother instituted this suit for the benefit of those children against John Cunningham to recover a judgment in the sum of $10,500, payable in monthly installments of $20 for each of the children during their minority.

"The basis of plaintiff's demand consisted in allegations that the children are in dire need of food and clothing, and that the mother is unable to supply them therewith, and that the defendant has failed and refused to furnish any means of support for said children. The petition contains these further allegations: * * *

"`That they are without means of obtaining food, clothing, and other commodities necessary for their support and maintenance at this time, in that they are unable to secure an extension of credit to cover such necessary purchases, and they are unable to obtain a place where such can be purchased upon the faith or credit of their father, John Cunningham, or their mother, Mrs. Toria Cunningham; that their said mother, Toria Cunningham, is likewise unable to provide credit for them so that such necessary food, clothing and other commodities necessary to their support and maintenance, can be procured, and therefore these plaintiffs are entitled to have this court determine the amount necessary therefor, and render judgment accordingly.

"`That the defendant, John Cunningham, is possessed of good physical and mental faculties, and at the present has an earning capacity of approximately $2,500 annually, and has a good position that is permanent, which these plaintiffs say produces unto him that sum. That, in addition to his present earning power and capacity, the said defendant has both personal and real property which could be converted into funds with which such food, clothing, and other commodities necessary to their support and maintenance can be provided, all of which is needed in maintaining and giving said children reasonable educational advantages which should be offered unto them as they reach a scholastic age.

"`That, in order to provide sufficient food, clothing, and other commodities necessary to their support, maintenance, and education, based upon an amount in keeping with reason and their station in life, it will require the sum of $60 per month during the period of their minority, that is, $20 for each of them per month during their minority, which said sum these plaintiffs would say is in all things reasonable and within the power of the defendant to provide. That, based upon this sum, as aforesaid, these plaintiffs are entitled to judgment in the sum of $10,500, payable in monthly installments of $60 each and every month.'

"The trial court sustained a general demurrer to the petition, and, the plaintiffs having declined to amend, the cause was dismissed. From that judgment plaintiffs have prosecuted this appeal."

The Court of Civil Appeals reached the conclusion that "under their prayer for general relief and the facts alleged, which the demurrer admits to be true," the minor plaintiffs are entitled—

"To the following relief, which the trial court, sitting as a court of equity, has jurisdiction and authority to award:

"First. A decree fixing in advance for a stated period of time such an amount for the support and maintenance of the minor plaintiffs as the court in his discretion, after notice to the defendant, and upon evidence heard, may determine to be fair and equitable alike to the children and their father, considering the necessities of all and the ability of the father to furnish such.

"Second. A further decree ordering and requiring defendant to pay to plaintiffs' mother for the maintenance and support of such minors the amount so fixed by the court, and, in the event of defendant's refusal to obey that order, without just cause, the judge of the trial court will be authorized and empowered, after due notice to him upon evidence heard, to adjudge him in contempt and punish him by either fine or imprisonment or by both.

"Third. A further decree within the discretion of the trial judge, fixing the amount of such allowance as a lien to be thereafter enforced by said court or under its direction, if necessary, on any property, real or personal, that defendant may own at the time of any hearing, and appointing a trustee, with all the powers of a receiver, to take charge of all such property and collect the rents and revenues arising therefrom, and return the same into the registry of the court, to be applied to the support and maintenance of the minor children, upon orders of the trial court to be thereafter made."

The judgment of the district court was therefore reversed, and the cause was remanded to the district court.

Having granted a writ of error, the Supreme Court is required to determine the question of grave importance as to what relief, if any, the trial court could rightly award these minors, on the facts alleged.

The first legislation in Texas dealing with the jurisdiction of the district court over actions for maintenance of wife or child is "An act amending the Judiciary Laws of the Republic," approved by President Sam Houston on December 18, 1837. By section 2 of the act it was provided:

"That in addition to the powers given to the district courts by the act establishing the powers and jurisdiction thereof, approved December twenty second, One thousand eight hundred and thirty six, the said district courts shall have power to hear and determine all suits or actions arising between husband and wife for divorce or for a separate maintenance, and may decree divorces as well from the bonds of matrimony as from bed and board, or for a separate maintenance."—1 Gammel's Law, 1437.

It thus appears that it was originally the public policy of the Republic to confer authority on the district court to compel either spouse to provide the other with proper maintenance.

After a brief time, the Congress enacted a change in the public policy of the Republic, disclosed by sections 8, 6, 13, and 4 of the Act of January 6, 1841, which have been continuously re-enacted in substance, and are now embodied in articles 4637, 4636, 4639, and 4638, Complete Texas Statutes (Vernon's Ann. Civ. St. arts. 4637, 4636, 4639 and 4638).

Section 8 provided: "That if the wife, whether complainant or defendant, has not a sufficient income for her maintenance during the pendency of the suit for a divorce, the judge shall allow her a sum for her support proportional to the means of the husband, until a final decree shall be made in the case." 2 Gammel 485.

Section 6 provided: "That pending any suit for a divorce, the court may make such temporary orders respecting the property and parties as they shall deem necessary and equitable." 2 Gammel 484.

Section 13 provided: "That the several district courts aforesaid shall have power in all cases of separation, between man and wife, to give the custody and education of the children to either father or mother, as to them shall seem right and proper, having regard to the prudence and ability of the parents, and the age and sex of the child or children to be determined and decided on the petition of either party, and in the meantime to issue any injunction or make any order that the safety and well being of any such children may require." 2 Gammel 486.

Section 4 provided: "The court pronouncing a decree of divorce from the bonds of matrimony shall also decree and order a division of the estate of the parties in such way as to them shall seem just and right, having due regard to the rights of each party and their children, if any: provided however that nothing herein contained shall be construed to compel either party to divest him or herself of the title to real estate or to slaves.' 2 Gammel 484.

The terms of sections 6 and 8 explicitly restrict the court's power in making provision for maintenance and support to its exercise only during pendency of the action for divorce and prior to the entry of final judgment. Again in section 13, after giving the court wide discretion in determining the custody of children in a final decree, by the use of the words, "in the meantime," the Congress again restricted to temporary, interlocutory orders the exercise of the court's power to make provision for "the safety and well being of any such children." When it came to deal with the final decree, the 1841 act was specific in stating the court might decree the marriage null and void, or decree a separation of the bonds of matrimony, and make award of the custody and education of the children, and finally provide for the husband and wife and children by means of "division of the estate of the parties in such way as to them shall seem just and right, having due regard to the rights of each party and their children." Sections 1, 2, 3, 13, 4, Act of January 6, 1841, 2 Gammel 484 to 486.

Whatever doubt might have arisen as to the correct construction of the provisions of the act of 1841 has been removed by their consistent interpretation by the appellate...