Gully v. Gully

• Citation: 173 S.W. 1178
• Decision Date: 15 February 1915
• Docket Number: (No. 1403.)
• Parties: GULLY v. GULLY.
• Court: Texas Court of Appeals

173 S.W. 1178

GULLY v. GULLY.

(No. 1403.)

Court of Civil Appeals of Texas. Texarkana.

February 15, 1915.

Rehearing Denied March 4, 1915.

Error from District Court, Panola County; W. C. Buford, Judge.

After final decree in divorce proceedings between herself and T. R. Gully, Mrs. M. E. Gully moves for an order of sale of defendant's property. Judgment for plaintiff, and defendant brings error. Reversed, and suit dismissed.

On January 16, 1914, Mrs. M. E. Gully filed in the district court a motion averring that in a final decree entered April 4, 1913, in divorce proceedings between herself and husband, she was awarded the custody of the seven minor children of the marriage, and the award of custody expressly provided that the future support, maintenance, and education of the children should be jointly provided and paid for by both their mother and father, and the amount thereof was fixed at $100 per month, payable $50 each on the 4th day of every month. The division of the estate of the husband and wife, it is averred, was ordered in the decree, and the husband received a large and valuable property in separate and community realty, and the allowances payable to the children were made a charge and lien against the community property respectively set aside to each of their parents. After the decree, and after taking possession of the property set aside to him, the husband, it is averred, collected and received rents and revenues therefrom, but failed and refused after demand to pay his proportion of the allowance or to contribute any sum to the support and maintenance of the children. It is further averred that the mother was required to entirely support the children out of her own means, and that she has expended for their maintenance the allowance of $100 per month from the date of the decree of custody to the filing of this petition, amounting to the total sum of $1,200. The prayer of the petition was for citation on the defendant, and for an order of sale against the specific property set aside to the defendant in the decree of April 4, 1913, as his part of the community property, to satisfy the amount unpaid upon the allowance by the father amounting to $600, and further for an order providing in terms for an order of sale of the defendant's part of the community property set aside to him in the decree of April 4, 1913, as the defendant may refuse to pay the fixed allowance provided against him in the decree. The defendant in the motion was served in person with a citation on January 16, 1914. At the ensuing term of the court, and on March 31, 1914, the court heard the case and entered a judgment thereon. After stating the appearance of the parties, the judgment recites that the court finds that the defendant owes to the plaintiff the sum of $600 under the terms of the decree entered on April 4, 1913, and then adjudges a recovery against him for the $600 and awards execution therefor, and further awards an order of sale of that part of the community property set aside to him in the decree of April 4, 1913, to pay the sum of $600. The judgment further recites that this judgment shall be without prejudice to future enforcement of the decree of April 4, 1913, as allowances may accrue and be unpaid. The defendant in this judgment sues out a writ of error to this court, asking it to be reviewed and set aside on the errors assigned.

H. N. Nelson, of Carthage, for plaintiff in error. Young & Abney, of Marshall, for defendant in error.

LEVY, J. (after stating the facts as...