Gard v. Gard, 4784
| Decision Date | 07 March 1951 |
| Docket Number | No. 4784,4784 |
| Citation | 239 S.W.2d 410 |
| Parties | GARD v. GARD. |
| Court | Texas Court of Appeals |
Alfred E. Creigh, Jr., Alpine, for appellant.
Mae M. Ament, Alpine, for appellee.
This is an appeal from a judgment of the District Court of Brewster County.
Lucile W. Gard sued Arthur James Gard to recover the principal sum of $3,285.00, alleging the same to be due under a provision of a judgment of a District Court of the State of Idaho in a divorce proceeding between the same parties decreeing the defendant, Arthur James Gard, should pay to the plaintiff, Lucile W. Gard, the sum of $30.00 per month for the support and education of their two minor children when the plaintiff was gainfully employed, and $50.00 per month when she was not employed. Plaintiff sued to recover in her individual capacity and sought and obtained a personal judgment for the principal sum above, together with interest (without specifying the rate) and costs of suit. The trial was to the Court without a jury.
The judgment sued upon was entered July 7, 1936, and the provision upon which this suit is predicated reads as follows, to wit:
The younger child reached the age of 18 years on March 2, 1946, and this suit was filed on June 30, 1947.
The case was tried on the testimony offered by the plaintiff alone.
The defendant has briefed 16 points of error but we regard the answer to one question decisive of the case and the appeal.
Plaintiff regarded the quoted provision a personal judgment in her favor for the sums of money therein named and predicated her suit thereon, suing as we have already noted in her individual capacity, and recovered in the same manner. Such is not the case. It is obvious the recovery is for the benefit of the children, and creates no cause of action in favor of the plaintiff personally and individually. It is said in 27 C.J.S., Divorce, § 321(b), page 1221, the wife to whom an award is made for the benefit of the children has no proprietary rights in the amounts ordered to be paid by the husband for the support of the children, and the money can only be used for their benefit. Our statute makes it plain the award may be made to some other than the mother, Art. 4639a V. C.S., and provides, Sec. 1a the person or persons to whom the award is made shall file monthly reports setting out an itemized statement of the expenditures of the sum or sums so received.
The provision for the...
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Gard v. Gard
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