Gully v. Gully
| Decision Date | 18 May 1921 |
| Docket Number | (No. 2941.) |
| Citation | 231 S.W. 97 |
| Parties | GULLY v. GULLY. |
| Court | Texas Supreme Court |
Action by M. E. Gully against T. R. Gully. From a judgment for plaintiff, the defendant appealed to the Court of Civil Appeals, which reformed and affirmed the judgment (184 S. W. 555), and the defendant brings error. Judgment of the Court of Civil Appeals affirmed.
H. N. Nelson, of Carthage, for plaintiff in error.
Young & Young, of Marshall, for defendant in error.
By decree of the district court of Panola county, entered in 1912, defendant in error, Mrs. M. E. Gully, was granted a divorce from plaintiff in error, T. R. Gully, and the custody of their seven minor children. The decree ordered partition of the community property, including 968.90 acres of land, a sawmill, stocks of lumber and merchandise, 50 bales of cotton, etc., and set aside the homestead of 6.37 acres of land and certain appurtenant personalty for the use of defendant in error and her minor children so long as any one of them was under age or was an unmarried daughter. The decree adjudged 567½ acres of land to plaintiff in error as his separate estate. By appropriate recital the court reserved jurisdiction to make provision for the maintenance of the minors.
In 1913 the court rendered a final judgment partitioning the community property, in accordance with its previous decree, and at the same time the court fixed $100 per month as an allowance for the support, maintenance, and education of the minors, and adjudged that same be paid one-half by defendant in error and one-half by plaintiff in error.
Upon the refusal of plaintiff in error to pay one-half of the minors' monthly allowance, defendant in error applied for and obtained an order of the court directing the sale, in satisfaction of same, of a portion of the community property which had been partitioned to plaintiff in error. On appeal the order was reversed; the provision for the monthly allowances to the minors being held inoperative and void. Gully v. Gully, (Civ. App.) 173 S. W. 1178.
Afterwards this suit was brought to recover of plaintiff in error the amount expended by defendant in error subsequent to the decree of divorce for necessaries for the children. In the trial court defendant in error recovered a judgment for such expenditures as were found to have been reasonable and necessary for the support of the children. On appeal the Texarkana Court of Civil Appeals reversed this judgment and rendered judgment for defendant in error for one-half the amount recovered in the court below, one of the justices dissenting on the ground that defendant in error ought to have been denied any recovery whatever. Gully v. Gully, 184 S. W. 555.
The judges of the Court of Civil Appeals concurred in the view that the duty rested primarily on the father, during the marriage, to support the minor children. A majority of the judges concluded that, when the marriage relation was terminated by the decree of divorce with an award of the custody of the children to the mother, then, the duty to provide necessary support for the children rested equally on the father and mother. The minority judge considered that the duty to support followed the custody and passed to the mother alone.
The assignments here urge that the judgments in the divorce suit dissolving the bonds of matrimony between the husband and wife, awarding the custody of the minor children to the wife, and settling the property rights of the husband and wife, had the legal effect to absolve the husband from any obligation to support the children, or to make his obligation secondary to that of the wife, or had the legal effect to at least absolve the husband from any obligation for the children's support which could be enforced otherwise than by further proceedings in the divorce suit.
The judgments in the divorce suit, together with the adjudication of the invalidity of the order for stipulated monthly allowances, had the same effect, in so far as this controversy is concerned, as if the court had simply decreed the divorce and awarded the custody of the children to the mother. Apart from the provision of a homestead and its furnishings, for which no compensation was sought in this action, there is nothing in the judgments not in every judgment of divorce awarding the children to the mother's custody, which could impair the obligation of either parent to support the children except the order for monthly allowances, which was adjudged void.
The truly important question to be decided is whether the father, owning an adequate estate, can be required to pay the value of necessaries for his minor children, when furnished by the mother, from her own adequate estate, after the mother has been divorced from the father, and after the custody of the children has been adjudged to the wife; the decree of divorce failing to provide for the children's maintenance.
The decisions in Texas uniformly recognize and declare that both parents are charged with a natural and legal duty to support their children during minority.
Perhaps the parent's natural duty has nowhere been better stated than by the court, speaking through Judge Brown, in State v. Deaton, 93 Tex. 247, 54 S. W. 903, when he said:
"God, in his wisdom, has placed upon the father and mother the obligation to nurture, educate, protect, and guide their offspring, and has qualified them to discharge these important duties by writing in their hearts sentiments of affection and establishing between them and their children ties which cannot exist between the children and any other persons."
A succinct statement of the parent's legal duty was made in Judge Stayton's opinion in G. H. & H. Ry. Co. v. Moore, 59 Tex. 68, 46 Am. Rep. 265, as follows:
"The parent is under a legal obligation to educate and maintain the child, and it has no legal claim upon others to perform that duty."
Our statutes define a "neglected child" as one who has not proper parental care, and make it a misdemeanor for "any parent" to willfully or without justification neglect or refuse to provide for the support and maintenance of his or her child under the age of 16 years in destitute or necessitous circumstances. Article 2184, R. S.; chapter 101, Acts 33d Leg. (Vernon's Ann. Pen. Code 1916, art. 640a); White's Penal Code, p. 1828.
The court is enjoined, in decreeing a divorce, to respect the rights of the children, in disposing of the estates of both parents. Article 4634, R. S. In order to provide revenues for the maintenance of the children, the interest of each parent in the community property and the separate property of both parents may be utilized, subject alone to the statutory limitation that neither parent be divested of title to realty. Fitts v. Fitts, 14 Tex. 454; Rice v. Rice, 21 Tex. 58. Thus the law regards the right of minor children to maintenance as paramount to the rights of the parents to the use of any and all property belonging to them.
A duty could not be more plainly defined as legal than by providing means for its enforcement in both civil and criminal courts; and there can be no question about it resting on those against whom it is expressly made enforceable.
Though both parents are under the duty, legal as well as moral, to support and educate their children during minority, the duty rests primarily in this state, without doubt, upon the father.
The court said in Magee v. White, 23 Tex. 192:
The doctrine of Magee v. White is reaffirmed as settled law in Hutchinson v. Underwood, 27 Tex. 256.
The father's primary obligation was the necessary foundation of the court's declaration by Chief Justice Hemphill in Rice v. Rice, 21 Tex. 68, that where on divorce the minors were intrusted to the mother, the funds for their support must be furnished by the father, but, where the minors were intrusted to ...
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