Ex parte Padfield, A-4955

• Decision Date: 09 February 1955
• Docket Number: No. A-4955,A-4955
• Citation: 154 Tex. 253,276 S.W.2d 247
• Parties: Ex parte Dean PADFIELD.
• Court: Texas Supreme Court

Page 247

276 S.W.2d 247

154 Tex. 253

Ex parte Dean PADFIELD.

No. A-4955.

Supreme Court of Texas.

Feb. 9, 1955.

Doss Hardin, Fort Worth, Small, Small & Craig, Austin, for relator.

Francis Culhane, San Angelo, Richard F. Martin, Fort Worth, for respondents.

CULVER, Justice.

Relator, Padfield, seeks to be relieved from the penalties of an order of the Wise County District Court adjudging him in contempt for failure to pay child support as ordered.

Padfield was granted a decree of divorce nisi in the State of Colorado on the 21st day of April, 1950. The decree by its terms was to become final six months thereafter. It ordered Padfield to pay the sum of $100 monthly for the support of an adopted child. He complied with this order, according to his testimony, for a period of six months and has made no payments since that time.

The former wife petitioned the district court of the county in which relator resides to have him adjudged in contempt for failure to comply with the Colorado court's support order. Upon a hearing the court found among other things that (a) Padfield had never filed an action in the Colorado District Court asking for reduction of child support payments, (b) the divorce decree became final October 21, 1950, (c) both parties had remarried, (d) Padfield is $3,400 in arrears and is able to pay the amount for which he is in default.

The Court thereupon adjudged him in contempt and ordered him to be committed to jail until he paid the $3,400 due and owing the $116.55 court costs.

Relator contends that the judgment cannot stand and he should be discharged from the confinment imposed for the following reasons:

(1) The Colorado decree was interlocutory and not shown by proof to be a final, valid and subsisting judgment.

(2) That the Colorado judgment was not shown to have been, (a) such a judgment as the Texas courts could have rendered in the first instance, (b) such a judgment that did not require the performance of acts contrary to our public policy, (c) that all of the jurisdictional facts required by the Texas statutes were not present.

(3) That the uncontroverted evidence conclusively established his inability to perform.

(4) Because it attempts to imprison petitioner for failure to pay appeal costs for which adequate bond has been given.

The Colorado decree reads in part as follows:

'It is accordingly ordered, adjudged and decreed by the Court that this Interlocutory Decree is hereby made and entered the day and year first above written according to the foregoing findings of the court and that the bonds of matrimony heretofore and now existing between Plaintiff and Defendant be dissolved and for naught held and that if at the expiration of the period of six (6) months from the after this date this Interlocutory Decree has not been set aside and no motion or application to have the same set aside is pending and undisposed of, it shall become the permanent and final decree of this Court and the parties hereto shall be finally and fully divorced.

'It is further ordered that the Plaintiff pay to the Defendant by way of support money for the minor child, Judy Padfield, the sum of One Hundred ($100.00) Dollars per month commencing with the date hereof, and continuing monthly thereafter until the further order of the Court.'

This judgment duly authenticated was offered in evidence. There is no documentary proof to the effect that no motions or applications to modify, set aside or appeal from the Colorado judgment were filed and acted upon. We think, however, the circumstances shown supported the finding that this decree became final six months after its entry. The relator testified that he paid child support for the full six months of the interlocutory period. He satisfied the terms of the decree in making the division of property ordered by the court and both he and his wife shortly thereafter remarried. The inference most surely can be indulged that the relator did not apply for nor secure a modification of the child support order.

In support of his point he cites and relies upon Fox Vliet Drug Co. v. Arnold, Tex.Civ.App., 84 S.W.2d 1012, error dismissed, and Ogg v. Ogg, Tex.Civ.App., 165 S.W. 912. In Fox Vliet an authenticated copy of an Oklahoma judgment was excluded by the trial court on the ground that same was not proved up as a valid and final judgment. No other proof having been offered, judgment denying recovery was affirmed by the Beaumont Court briefly saying that presumption of its finality and regularity will not be indulged.

The two cases relied on by the Beaumont Court in its opinion are American National Bank of Oklahoma v. Garland, Tex.Com.App., 235 S.W. 562, and Walker v. Garland, Tex.Com.App., 235 S.W. 1078. In the first of these two cases the judgment showed on its face that it was interlocutory and not final for that the cause had been continued as to one defendant and recovery allowed against the other two. In the latter, an Oklahoma judgment foreclosing a mortgage, the court held, could not be sued on in Texas until the proceeds of the mortgaged property had been applied and the balance due determined.

In Ogg, plaintiff sought to recover past due installments of alimony allowed her in a New York divorce judgment. The court citing Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, held that in the absence of proof of the law of New York the judgment was not shown to be final. For thus only, could it be shown that the right of modification reserved in the New York court was one which did not extend to overdue and unsatisfied payments, but only to those which might occur in the future. The court further observed that inasmuch as permanent alimony is unknown in Texas the general rule, that the laws of another state are assumed to be the same as the laws of the forum in the absence of proof to the contrary, could not be invoked in aid of petitioner. In this state a decree of divorce including child support becomes final and binding. The child support is certain and fixed until changed by the court after application, a hearing and proof of changed conditions.

Even if the judgment does not recite in so many words that the child support payment is to be made 'until further order of the court's this is necessarily implied because the statute provides:

'* * * Said court shall have power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice to such parent as above provided for, or with his or her consent.' Art. 4639a.

This provision does not make the original decree any the less final nor invest the court with any retroactive authority.

In McAfee v. McAfee, Tex.Civ.App., 255 S.W.2d 185, it was shown that the original decree of divorce ordered respondent to pay to the petitioner the sum of $160 monthly for the support of a child 'or until further ordered by the court and subject to the further orders of this court.' Subsequently, on motion the court reduced the child support order to $100 per month. We held that this modification was such a final judgment as to be appealable.

The second point is based upon the failure of the record either in the Colorado decree or on the trial of the contempt proceedings to show affirmatively that...