Hopkins v. Hopkins

• Decision Date: 01 July 1976
• Docket Number: No. 17742,17742
• Parties: L. D. HOPKINS et al., Appellants, v. Shirley Ann HOPKINS, Appellee.
• Court: Texas Court of Appeals

Page 242

539 S.W.2d 242

L. D. HOPKINS et al., Appellants, v. Shirley Ann HOPKINS, Appellee.

No. 17742.

Court of Civil Appeals of Texas,

Fort Worth.

July 1, 1976.

Rehearing Denied Aug. 6, 1976.

Bailey, Williams, Westfall, Lee & Fowler, and G. David Westfall, C. Edward Fowler, Jr., and William Dixon Wiles, Dallas, for appellant L. D. Hopkins.

Brown, Herman, Scott, Dean & Miles, and J. Shelby Sharpe, and Morton L. Herman, Fort Worth, for appellant Bell Helicopter International, Inc.

Rohne & Hoodenpyle, and Jerry R. Hoodenpyle, Arlington, for appellee.

OPINION

MASSEY, Chief Justice.

The appeal is by L. D. Hopkins from a judgment granting his wife, Shirley Ann Hopkins, a divorce. Therein he complains of property settlement upon divorce, and of the amount and extent of child support payments provided to be paid by him in the future. Furthermore, he attempts to present his appeal from the provisions of the judgment for the alimony and child support which had been directed to be paid by him or for his credit by antecedent order of the court entered some months before the hearing upon the merits of the divorce proceeding, but we have concluded that in such respect the complaint is immaterial.

The appeal is also by Bell Helicopter International, Inc., at all material times the employer of L. D. Hopkins. It was brought into the suit by the wife, Shirley Ann Hopkins. At a preliminary hearing some months before the trial of the divorce case there was entry of an order of the court, in the nature of a temporary mandatory injunction, providing that pending final hearing Bell Helicopter withhold from the pay of its employee, the husband involved, the sum of $900.00 per month. Apparent from the order was the court's purpose that $500.00 thereof would be for alimony Pendente lite, and $400.00 for the support of the parties' three children. Bell Helicopter, though having thereafter withheld the amount of $900.00 per month from the pay due the husband as his wages, had not paid it as it had accrued, as ordered, but had preserved it as a fund.

There was no appeal from the order which was of temporary character. There was nothing done by anyone to seek enforcement of any temporary order for alimony Pendente lite or for child support. There was no attempt by the husband to present any complaint against Bell Helicopter for wrongful withholding of wages. There was no attempt by Bell Helicopter to assert any affirmative right against either the wife or husband for attorney's fees, etc. By having withheld a part of the husband's wages there was accumulated a fund in the possession of Bell Helicopter as of the time of the judgment from which appeal has been taken.

In this state of affairs the parties appeared and participated upon the occasion of trial of the merits of the divorce.

The court held the decision in abeyance for a time, and judgment was rendered on August 20, 1975, some months subsequent to the date the divorce case was tried. By such judgment the wife, Shirley Ann Hopkins, was granted a divorce from her husband and custody of the parties' three children. Of this portion of the judgment there is no complaint. There was division of community property between the parties of which there was no complaint and it will not be further noticed. The judgment granted to the wife the total fund accumulated in the hands of Bell Helicopter International, Inc., to August 20, 1975. The judgment decreed that future child support be paid by the father from date of judgment at the rate of $450.00 per month until the youngest of them should attain the age of 18 years. The judgment granted personal judgment to the wife against her husband for an attorney's fee of $900.00.

By such judgment, in addition to the court's necessarily implied In rem adjudication that the fund accumulated and withheld by Bell Helicopter International, Inc., should from date of its rendition stand as the individual personal property of Shirley Ann Hopkins, it was ordered that such corporation deliver the same to her. From and after the date of judgment the court directed that said corporation withhold the amount of $450.00 per month from the pay of L. D. Hopkins and pay it--in behalf of said husband and father--to the children's mother through the Tarrant County Child Support Office. There was provision that its duty so to do should continue so long as Hopkins continued as its employee.

In explanation of at least part of the court's action L. D. Hopkins is employed by Bell Helicopter International, Inc., in Iran, a foreign country. The court justifiably concluded from evidence that he would not voluntarily discharge obligations imposed by the judgment.

Action of this Court

We affirm that portion of the trial court's judgment in the case as between Shirley Ann Hopkins and Bell Helicopter International, Inc., which was In rem, in that it adjudicated the title to the accumulated fund, and directed that the fund accumulated and held as of August 20, 1975, be delivered to her as a part of the community property of the parties to the divorce action.

We reverse, as void, that portion of the trial court's judgment in the case as between Shirley Ann Hopkins and Bell Helicopter International, Inc., purporting to decree liability of said defendant to accrue (as any portion of the future wages of L. D. Hopkins) after August 20, 1975. We render our own decree that from and after said date Bell Helicopter's obligation to L. D. Hopkins is not in any way affected by the judgment rendered by the trial court.

We reverse that portion of the judgment as between Shirley Ann Hopkins and L. D. Hopkins which awarded an amount as attorney's fees to the former; and we sever and remand that portion of the cause, as a separate cause, for a new trial.

We reform that portion of the judgment as between Shirley Ann Hopkins and L. D. Hopkins relating to the duty of the latter to pay child support, by deletion of the provision therein that the payments ordered to be paid to or in behalf of Shirley Ann Hopkins by L. D. Hopkins as support for minor children be administered by Bell Helicopter International, Inc., as his agent; and by our reformation cause the judgment in said respect to provide as follows, to wit:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that L. D. Hopkins pay child support payments in the amount of $450.00 per month with the first payment of $450.00 being due to be paid on the 1st day of September, 1975, and a like amount of $450.00 on the 1st day of each month thereafter until the youngest of said children reaches eighteen (18) years of age or until further order of the Domestic Relations Court Number Four of Tarrant County, Texas, said payments to be paid by L. D. Hopkins to the Tarrant County Child Support Office, Fort Worth, Texas.

As so reformed the judgment obtained by Shirley Ann Hopkins as against L. D. Hopkins is affirmed; save and except for attorney's fees which part is remanded for trial as a severed case.

Explanation of holdings affecting Bell Helicopter International, Inc.

What we hold in this divorce case is that since the husband's employer, without legal obligation to withhold part of his wages and thereby create a fund (because the trial court order directing that such be done was a void order under the law), did actually withhold the same and did create such a fund, such fund stood as community property; that for purposes of this case Bell Helicopter is deemed to have become a voluntary stakeholder of such community property; that as a party to the divorce suit Bell Helicopter stood before the court at time of final judgment exactly as would have been the case had it been a bank holding a deposit of community funds of the employee-husband and his wife; that the fund, regardless of whether there was propriety in the manner of its creation, was community property of the parties divorced, to which the court was obliged to determine entitlement, and of which determination Bell Helicopter would be deemed to have proper notice as a party to the suit.

Chronology of events

29 October, 1974, L. D. Hopkins, husband, sued his wife for divorce in the Domestic Relations Court, Tarrant County, Texas. Though stating the names and birth dates of the three minor children of the parties, there was nothing stated in said husband's petition concerning their custody.

6 November, 1974, Shirley Ann Hopkins, the wife, filed her answer by general denial, coupled with her own cross-action for divorce. She prayed for relief including custody of the parties' minor children, for provision to be made for their support by payments to be made by L. D. Hopkins in the amount of $400.00 per month, for attorney's fees in an amount to be determined by the court, and for temporary alimony for her own support by payments to be made by her husband in the amount of $500.00 per month pending final hearing.

5 February, 1975, an order granted the writs of temporary injunction to the wife, pursuant to amendments of her original pleadings and joinder in the suit of Bell Helicopter International, Inc., as a party cross-defendant to her cross-action for divorce. Thereby, to be effective until the time of final hearing of the divorce proceeding, there was purported merger of an earlier temporary restraining order into the temporary injunction (although the effectiveness of said antecedent order ceased January 15, 1975). The temporary injunction decree provided for Pendente lite payments and liability for payments--to be made to the wife by Bell Helicopter, by withholding from the husband's pay a portion sufficient for the purpose,--at the rate of $900.00 per month for alimony and child support. The decree did not provide for individual obligation of the husband though he was to be given credit for the performance of the duty (in his behalf) by Bell Helicopter. Though it is immaterial by our view of the case that there was provision therefor made by temporary orders, they...