Johnson v. Johnson

• Decision Date: 25 February 1928
• Docket Number: (No. 11923.)
• Citation: 6 S.W.2d 175
• Parties: JOHNSON v. JOHNSON.
• Court: Texas Court of Appeals

6 S.W.2d 175

JOHNSON v. JOHNSON.

(No. 11923.)

Court of Civil Appeals of Texas. Fort Worth.

February 25, 1928.

Rehearing Denied March 31, 1928.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Suit by Gilbert S. Johnson against Hazel S. Johnson for an injunction. From a judgment awarding plaintiff an injunction and for defendant against plaintiff for certain money, defendant appeals, and plaintiff filed a cross-assignment of error. Affirmed.

W. D. Caldwell and Lee, Lomax & Wren, all of Fort Worth, for appellant.

McLean, Scott & Sayers, of Fort Worth, for appellee.

CONNER, C. J.

This suit was instituted by Gilbert S. Johnson against Hazel S. Johnson, formerly his wife, to enjoin the prosecution in the justice court of precinct No. 1, Tarrant county, Tex., of 24 separate suits, in each of which recovery for the sum of $150 was sought from appellee. It was alleged by appellee that said sums had been contracted to be paid by him under a separation agreement between him and his former wife; that said suits were all subject to the same defenses, and could be tried and determined upon one trial. Appellee admitted the execution of the contract referred to and the nonpayment of the several installments sued for in the justice court, but alleged that the contract was illegal, in violation of public policy, executed without consideration, and contrary to the laws of this state, in that the payments were intended as in lieu of permanent alimony.

The injunction as prayed for was granted. Defendant Hazel S. Johnson, after the court had overruled a motion to dissolve the injunction, and held that he had jurisdiction to determine the case, answered to the merits by a general demurrer, a general denial, and specially to the effect that the separation agreement had been executed by the contracting parties on September 10, 1919, for a valuable consideration, all of which had been theretofore established and adjudicated against the plaintiff, Gilbert S. Johnson, in an action instituted against him by defendant in a court of competent jurisdiction, to wit, the Seventeenth district court of Tarrant county, Tex., in cause No. 67984 on the docket of said court, styled Hazel S. Johnson v. Gilbert S. Johnson, wherein judgment was rendered against the latter for the installments provided for in said contracts that were then due, and from which judgment said Gilbert S. Johnson had never prosecuted an appeal; that said judgment existed as a final judgment against the plaintiff and binding upon him, by reason of which he was barred and estopped from asserting any of the defenses to said contract alleged in his petition, or any defense which could or might have been urged as a defense to said contract in said suit in the Seventeenth district court.

Defendant further specially pleaded that the contract of September 10, 1919, had been executed by plaintiff and defendant as a separation agreement in contemplation of a divorce, and that thereafter, on September 20, 1920, in the superior court of the state of California, in and for the county of San Francisco, a decree of divorce severing the marriage relation between plaintiff and defendant had been granted defendant and became effective; that at and before the execution of said contract and said decree the contracting parties were seized and possessed of a large amount of community property, and the contract was made and entered into in settlement of the property rights of the parties.

Copies of the contract, decree of divorce, and the judgment rendered in the Seventeenth district court were made a part of the defendant's answer, together with the pleadings and the findings of fact and conclusions of law filed by the judge of that court, which judgment, as before stated, was specially pleaded as a judicial determination of the plaintiff's liability for the monthly installments for which defendant had instituted her suit in the justice court, and which plaintiff was estopped to deny. It was further alleged that defendant had never remarried, and that by the terms of the contract each and all of the sums sued for in the justice court were due and payable, and judgment for those amounts and costs incurred in that connection was prayed for.

Plaintiff filed a reply to the cross-action repeating his allegations relating to permanent alimony, and further specially pleaded that the agreement was made in contemplation that the defendant would rear, train, educate, and care for the minor son of the contracting parties; that the defendant had lost control of the child, who ceased to live with her, and that no part of said monthly installments had ever been applied toward the support and maintenance of the child, in violation of her promise to do so, whereupon plaintiff himself was forced to provide for and educate said child at large expense, and he prayed that, if the contract was to be enforced at all, it should be so modified that plaintiff would only be required to pay such sums as the evidence would show were fair, right, and equitable.

The trial was before the court without a jury. The court's findings of fact and conclusions of law are as follows:

"(1) Plaintiff, by written contract, agreed to pay defendant the monthly sums of $150, as herein sued for.

"(2) The consideration for this contract was in part the support and maintenance and care of their minor son.

"(3) That defendant failed and refused to support said son, and that plaintiff has been compelled to do so, and in response to a request of defendant.

"(4) That plaintiff, during the months for which these $150 payments accrued, spent more than $60 per month in the care, maintenance and support of said son.

"(5) That $60 per month is a reasonable and fair cost of the upkeep of said minor during said months.

"(6) That the suits filed in the justice court were each subject to the same defense, and involved practically the same issues of law and fact, and are between these same parties.

"(7) That heretofore in the Seventeenth district court of Texas payments accrued on said contract other than the payments herein involved, and judgment was rendered in said cause for Hazel Johnson.

"(8) This contract was in part in settlement of alimony, and was signed by plaintiff in Texas where he then resided, the defendant signing in California where she then resided, where she had then already filed suit for divorce, which divorce suit is in judgment, and in which plaintiff filed an appearance.

"I conclude:

"(1) That the contract was a valid contract when made.

"(2) That the suit in the Seventeenth district court does render res adjudicata the validity of the contract, but does not render res adjudicata the legality of the contract originally for the entire $150 per month therein sued for by the defendant.

"(3) I conclude that the consideration for said $150 per month payments sued on has failed to the extent of $60 per month.

"(4) I conclude that equity should enjoin the further prosecution of the justice court suits to avoid a multiplicity of suits."

Upon the findings so made, the court entered a judgment making permanent the preliminary injunction theretofore issued against the prosecution of the suits in the justice court, and further adjudged that the defendant, Hazel S. Johnson, recover of plaintiff, Gilbert S. Johnson, the full sum of $2,646.15, together with interest at the rate of 6 per cent. per annum thereon from the date of the judgment until paid, being $90 per month for each of the months set out in defendant's cross-action, with legal interest thereon, and the further sum of $58.20 court costs in the justice court cases, together with all costs in the pending suit.

From the judgment so rendered, defendant, Hazel S. Johnson, has duly prosecuted this appeal.

The substance of appellant's contentions on this appeal, as evidenced by her assignments of error, is that the court erred in allowing the defendant a rebate of $60 a month on the monthly installments declared upon, on the ground that all matters relating to the validity of the contract and the appellee's right to an abatement of the payments as therein provided had been determined and adjudicated in the judgment of the Seventeenth district court, which had been rendered on the 6th day of January, 1925.

Appellee in turn filed a cross-assignment of error, under which it is urged that the court erred in rendering any judgment whatever in favor of appellant, Hazel S. Johnson, for the reason that the contract sued upon shows upon its face for permanent alimony, which, under the laws of this state, is illegal, and against public policy, and void.

The contract upon which appellant based her right of recovery reads as follows:

"Gilbert S. Johnson with Hazel S. Johnson.

"This agreement, made and entered into this the 10th day of September, 1919, by and between Gilbert S. Johnson, hereinafter called first party, and Hazel S. Johnson, his wife, hereinafter called second party, both of the county and city of San Francisco, state of California, witnesseth:

"That whereas, the parties hereto are now husband and wife, the differences have arisen and do now exist between them the result whereof is that the said parties have lived separate and apart since on or about the 1st day of November, 1914, and have become definitely and finally convinced that it will be impossible for them now, or hereafter, to live together as husband and wife, and the second party is about to commence suit for divorce against the first party; and

"Whereas, the parties desire to settle all questions as to their respective property rights between themselves, and have been fully and independently advised by their respective counsel in regard thereto:

"Now, therefore, in consideration of the mutual covenants each to the other running, the parties hereto have agreed, and do hereby agree, as follows, to wit:

"First. The personal effects of the parties and the household effects...