Duke v. Duke
Decision Date | 06 October 1969 |
Docket Number | No. 7905,7905 |
Citation | 448 S.W.2d 200 |
Parties | Eleanor Mae DUKE, Appellant, v. Kenneth E. DUKE, Appellee. . Amarillo |
Court | Texas Court of Appeals |
McCown, Sheehan & Dubuque and Bill Sheehan, Dumas, for appellant.
Lovell, Lyle & Cobb and L. Dean Cobb, Dumas, for appellee.
Kenneth E. Duke and Eleanor Mae Duke were man and wife. On May 7, 1965, Kenneth Duke brought a divorce action against Mrs. Duke. On that same date Mr. and Mrs. Duke made and entered into a property settlement agreement. The beginning portion of said agreement is as follows:
'WHEREAS, certain unhappy differences have arisen between Kenneth E. Duke and his wife, Eleanor Mae Duke, and trouble has developed in their marriage; and WHEREAS, the parties, Kenneth E. Duke and Eleanor Mae Duke, have been living separately and apart for some time and plan to continue to live separately and apart; and
WHEREAS, it is the desire of the said Kenneth E. Duke and Eleanor Mae Duke that a fair, just and equitable property settlement agreement be worked out between the two of them so that there is a proper fair and equitable manner of dividing their property which they have accumulated as community property during the time of their marriage;
NOW THEREFORE, for and in consideration of the mutual promises and benefits as are herein contained, the parties hereto do hereby enter into this property settlement agreement and would request any court of competent jurisdiction to approve the same upon either party hereto requesting a divorce.'
The settlement agreement further provided that Mrs. Duke was to have the custody of their two children and that Mr. Duke was to pay $180.00 per month as child support. The judgment of the court granting Mr. Duke a divorce from Mrs. Duke also provided as follows:
On March 29, 1968, Mrs. Duke brought this action, and styled as the original divorce proceedings, for modification of the child support payment asking that the $180.00 per month be increased to $350.00 per month. The court in refusing the request for modification entered the following order:
'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the monthly child support payments as heretofore ordered by this Court were made pursuant to and in accordance with a contract made and entered into by Eleanor Mae Duke, Cross-Plaintiff herein, and Kenneth E. Duke, Cross-Defendant herein, and that said contractual provisions of the settlement decree and agreed judgment are not subject to modification herein and the Petition for Modification of Support Payments is hereby in all things overruled and Kenneth E. Duke, Cross-Defendant herein, is discharged with his costs, and all costs of this proceeding as adjudged against Eleanor Mae Duke, Cross-Plaintiff herein.'
From that order, Mrs. Duke perfected this appeal. Mrs. Duke will hereinafter be referred to as appellant and Mr. Duke as appellee.
The sole issue here involved is whether the trial court erred in refusing to modify the amount of child support and in holding that the contractual provisions of the settlement decree and agreed judgment were not subject to modification. We think it has been well settled in this state that where the duty to make child support arises from an agreement of the parties, their rights and obligations in that respect are governed largely by the rules relating to contracts. It is stated in Ex parate Jones, 163 Tex. 513, 358 S.W.2d 370 as follows:
(Emphasis ours)
See also Plumly v. Plumly, Tex.Civ.App., 210 S.W.2d 177 (writ dismissed) where it is stated:
See also the case of Morris v. Morris, Tex.Civ.App., 406 S.W.2d 550.
As late as March 1, 1967, the Supreme Court in the case of Francis v. Francis, 412 S.W.2d 29, discussing a matter like this one here involved, stated: To the same effect is the case of Belstrom v. Belstrom, Tex.Civ.App., 144 S.W.2d 614 (writ dismissed) and also Hutchings et vir v. Bates, 406 S.W.2d 419 by the Supreme Court.
Under Art. 4639a Vernon's Ann. Texas Civil Statutes, the trial court has the authority to inquire into and ascertain the financial circumstances of the parents of such child or children and of their ability to contribute to the...
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Ward v. Commissioner
...a separation agreement by reference in the decree. In that situation the child support provisions are not modifiable. Duke v. Duke, 448 S.W. 2d 200 (Tex. Ct. App. 1969). Such a prohibition is predicated upon a belief that by mere incorporation into the divorce decree the duty to provide chi......
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Hammond v. Hammond
...many factors when analyzing whether a change in circumstances warranted modification of the original order of support. See, e.g., Duke v. Duke, 448 S.W.2d 200 (Tex.Civ.App.--Amarillo 1969, no A close reading of the Texas Family Code, however, reveals that section 14.08 is silent as to the q......
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Lynde v. Lynde
...indicated a similar construction of Article 4639a. See: Davi v. Davi, 456 S.W.2d 238 (Tex.Civ.App.--Texarkana 1970, writ dism'd); Duke v. Duke, 448 S.W.2d 200 (Tex.Civ.App.--Amarillo 1969, no writ); Tharp v. Tharp, 438 S.W.2d 391 (Tex.Civ.App.--Houston (14th) 1969, writ dism'd); DeViney v. ......
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Hicks v. Hefner, 46422
...the powers and duties given the court by Art. 4639a. (citing cases.)' (pp. 240-241.) A similar holding appears in Duke v. Duke, 448 S.W.2d 200, (Tex.Civ.App., Amarillo, 1969.) In the Davi case the court was confronted with a journalized decree quite similar to that before us-the decree orde......