Freeland v. Freeland

• Decision Date: 09 May 1958
• Docket Number: No. 15389,15389
• Citation: 313 S.W.2d 943
• Parties: Arthur E. FREELAND, Appellant, v. Fern FREELAND, Appellee.
• Court: Texas Court of Appeals

Page 943

313 S.W.2d 943

Arthur E. FREELAND, Appellant, v. Fern FREELAND, Appellee.

No. 15389.

Court of Civil Appeals of Texas, Dallas.

May 9, 1958.

Chaney & Harless, Dallas, for appellant.

Henry Wade, Dist. Atty., and A. George Biggs, Asst. Dist. Atty., Dallas, for appellee.

DIXON, Chief Justice.

The judgment from which this appeal was taken is based on the Reciprocal Support of Dependants Act of Texas, Arts. 2328b-1, 2328b-2 and 2328b-3, Vernon's Ann.Civ.St.

Arthur E. Freeland, appellant-defendant, and Fern Freeland, appellee-plaintiff, were divorced by a judgment of the 17th District Court in Tarrant County, Texas on December 3, 1953. Appellee was awarded care and custody of three minor children. Appellant was ordered to pay $25 per week as child support, beginnig December 7, 1953, the payments to be made each week to the Collector of Child Support of Tarrant County, Texas.

Thereafter appellee with the three minor children moved to the State of Indiana, where she established her residence and that of the children. So far as the records show, appellant has continued to reside in the State of Texas.

On October 22, 1956 in the Circuit Court of Adams County, Indiana, appellee filed her petition in which she alleged that she and appellant were granted a divorce December 3, 1953 by the 17th District Court of Tarrant County, Texas; that appellant owed a duty to support their three minor children under the Reciprocal Support of Dependants Law of the State of Indiana (Sec. 3-3101 et seq., Burns' Indiana Statutes); that since December 3, 1953 Appellant has refused and neglected to provide fair and reasonable support for said minor children according to his means and earning capacity; and she was informed and believed that appellant is now employed in Grand Prairie, Dallas County, Texas, and resides either in Grand Prairie, Dallas County, Texas, or in Arlington, Tarrant County, Texas.

Appellee's petition in the Indiana County concludes with these two paragraphs:

'That the State of Texas has enacted a Uniform Reciprocal Support of Dependants Law which is substantially similar and reciprocal to Chapter 224 of the Acts of Indiana General Assembly of 1951 and that this complaint is filed for the purpose of invoking the jurisdiction of the District Court in the State of Texas in which the defendant resides and to obtain jurisdiction over the person and property of the defendant to enforce his duty to support his said minor children.

'Wherefore, the plaintiff prays for a determination of the duty of the defendant to support his minor children, and of the residence of the defendant and the proper jurisdiction of the District Court of Texas in Tarrant or Dallas Counties over the defendant and his person and property and for an order directing the Clerk of this Court to transmit authenticated copies of the Reciprocal Support of Dependants Law of this State, being Chapter 224 of the Acts of the Indiana General Assembly of 1951, certified copies of this complaint and the certificate of this Court to the appropriate district court of Texas for the enforcement of said duty to support.'

On October 27, 1956, the Indiana Court rendered a judgment in favor of appellee. We quote part of the judgment:

'And the undersigned Judge of the Adams Circuit Court * * * now finds and further certified:

'1. That the defendant, Arthur E. Freeland, owes a duty of support to the three minor children * * * according to the testimony of the plaintiff, the needs of the said three minor children for support from the defendant are in the sum of at least Thirty Dollars ($30.00) per week.

'2. That the above named defendant is believed to be residing in and at Grand Prairie, Dallas County, Texas. * * *

'It is therefore now ordered, adjudged and decreed by the Court that this certificate, together with three certified copies of the complaint, and three authenticated copies of Chapter 224, Acts of the General Assembly of Indiana, 1951, as amended in 1953, be transmitted to the District Court of Dallas County, Texas, for appropriate action to enfore the duty of Support.'

On January 24, 1957 certified copies of appellee's petition and of the judgment of the Indiana Court were filed in the 95th District Court, Dallas County, Texas. Appellant, after being served with a writ of Scire Facias, filed an answer consisting of a plea to the jurisdiction of the 95th District Court and a plea of res judicata.

The 95th District Court overruled both pleas and on July 19, 1957 entered a judgment for the appellee. This judgment orders appellant to pay $25 per week as child support beginning May 20, 1957, the payments to be made to the Juvenile Court of Dallas County, Texas, The judgment further provides that payments so made shall also be credited to amounts due under the child support order of the District Court of Tarrant County, Texas; and that the Juvenile Court of Dallas County, Texas upon request shall make certified quarterly, semi-annual or annual statements to the Clerk of the 17th District Court, Tarrant County, Texas.

It will be observed that the 95th District Court of Dallas County, Texas, did not order appellant to pay the $30 per week which, according to the testimony of plaintiff, in the Indiana proceeding was needed for the support of the three children. The Court ordered appellant to pay only $25 per week, the same amount the Tarrant County Court had already ordered the appellant to pay.

However, it will also be observed that the judgment of the 17th District Court, Tarrant County, Texas and the judgment of the 95th District...