Klaeveman v. Klaeveman, 10456

• Decision Date: 06 March 1957
• Docket Number: No. 10456,10456
• Citation: 300 S.W.2d 205
• Parties: Pauline KLAEVEMAN, Appellant, v. L. H. KLAEVEMAN, Appellee.
• Court: Texas Court of Appeals

Page 205

300 S.W.2d 205

Pauline KLAEVEMAN, Appellant, v. L. H. KLAEVEMAN, Appellee.

No. 10456.

Court of Civil Appeals of Texas, Austin.

March 6, 1957.

Rehearing Denied March 27, 1957.

Archer & Archer, Austin, for appellant.

Vandygriff & Barcus, Austin, for appellee.

HUGHES, Justice.

This suit is by Mrs. Pauline Klaeveman, appellant, against her former husband, L. H. Klaeveman, to recover a monetary judgment due under an alleged contract made during the divorce proceedings for the support of the parties' minor children.

Trial to the court resulted in a judgment that Mrs. Klaeveman take nothing by her suit.

The parties were divorced in February, 1953, by judgment rendered in Cause No. 93,388, in the 126th Judicial District Court of Travis County, the pertinent provisions of which are:

'It further appearing that two children were born to Plaintiff and Defendant during their marriage, to-wit: Hayden Lester Klaeveman, a boy, born April 29, 1943, and George Ann Klaeveman, a girl, born October 24, 1946; and the Court having heard the evidence as to surroundings and circumstances of each of such children and the financial circumstances, character, and fitness of their parents and their ability to contribute to the support of such children, and being of the opinion that the best interest of the said children will be served if they are given into the custody of the Plaintiff; it is Ordered, Adjudged, and Decreed by the Court that the present care, custody, and control of both of said children be granted to the Plaintiff, Pauline Klaeveman, and Defendant shall have the right to visit said children, and they shall have the right to visit him at reasonable times and places.

'It further appearing to the Court, after investigation of the financial circumstances of both Plaintiff and Defendant, that the defendant is well able to contribute to the support of said children the sum of $160.00 per month, whereas Plaintiff is in straitened circumstances, and the Court being further of the opinion that right and justice and the best interest of the said children require that the said Defendant contribute to the support of the said children:

'It is therefore Ordered, Adjudged and Decreed that the said Defendant pay to the registry of this Court on or before the 10th day of March, 1953, and on or before the 10th of each month thereafter the following sums: Eighty Dollars ($80.00) for the support of Hayden Lester Klaeveman, a boy, now of the age of nine (9) years, and the same amount shall be paid on the same dates for the support of Egorge Ann Klaeveman, a girl, now of the age of six (6) years; and it is further ordered that the said payments shall continue for each of the said children until he shall reach the age of sixteen years or until further ordered by this Court, that the said moneys shall be paid over by the registry of this Court to Plaintiff.

'It further appearing to the Court that Plaintiff and Defendant own certain community property, and that they have, by written agreement on file with the papers in this cause, partitioned said property, and the Court being of the opinion that such divisiion of the property will be just, right, and equitable; it is therefore Ordered that said agreement is hereby approved and made a part of this judgment, and said community property is hereby divided between the parties in accordance with said agreement.'

The contract referred to in the judgment, omitting formal parts, follows:

'Whereas, First Party has filed suit for divorce against Second Party, and the parties desire to make the hereinafter stated agreement to be effective if and when such divorce is granted.

'Now, Therefore, Know all Men by these Presents:

'It is agreed that First Party shall have the custody of the children of the parties hereto, Hayden Lester Klaeveman and George Ann Klaeveman, and Second Party shall have the right to visit the children, and they shall have the right to visit him at reasonable times and places. Second Party agrees to pay to First Party as support of said children the sum of One Hundred Sixty Dollars ($160.00) per month, which sum shall be paid on or before the 10th day of each month beginning with March, 1953.

'The parties hereto agree that they will sell their home located in Austin, Texas, the same being fully described in deed from L. L. McCandless to the parties hereto, dated August 31, 1950, and recorded in Vol. 1094, Page 267, with the net proceeds from said sale to be divided equally between the parties hereto.

'It is agreed that Second Party shall have the following personal property heretofore located in said home: the mahogany bedroom suit, the desk, the coffee table, the china, crystal, pots and pans, and his personal effects such as books, papers and clothes.

'It is agreed that First Party shall have all of the furniture, furnishings and fixtures located in said home except those items set aside to Second Party in the last preceding paragraph.

'It is further agreed that First Party shall receive the automobile owned by the parties hereto, with First Party assuming the indebtedness outstanding against the automobile in the sum of approximately Four Hundred Forty-Eight ($448.00) Dollars, payable in monthly installments of Twenty-Eight Dollars ($28.00) each.

'In testimony whereof, the parties have caused the agreement to be executed by and through their attorneys of record, thereunder duly authorized, the date first above stated.'

About March, 1954, the court, on application of Mr. Klaeveman, reduced the support payments from $160 to $100 per month which latter amount has been paid. It is the difference in these amounts for a period of 13 months that is sued for here.

Mr. Carl Hardin, Jr., a witness called by appellant, testified that he was an attorney and represented Mr. Klaeveman in the divorce suit and regarding the making of above contract testified:

'If my memory serves me correctly, we met here, and the case was called, and the evidence was put on, and, as I say, if my memory serves me correctly, we-the Court called a recess, in hopes that we could work out the differences of opinion pertaining to the settlement of the community property and to try to arrive at some figure which we could recommend to the Court.

'Q. Was it the intention of the attorneys at the time to present this as a recommendation to the Court for his finding? A. We would have had-it was my understanding that we were to try to resolve the differences between us, if we could, in an amicable manner, that the parties themselves would know better what could be used by themselves and who would need what, than perhaps the Court could, if they could reach an agreement along that line, that is what we were trying to do. We did reach an agreement, and we brought it back to the Court.'

Mr. Herman Jones, an attorney who represented Mrs. Klaeveman in the divorce suit, also called as a witness by appellant, testified:

'Q. Was it the intent at the time of the drawing of this instrument that this be presented to the Court for his consideration in the Judgment, or was that as between the parties, and the Court Judgment would rely upon the testimony that was offered from the stand? A. Well, now, again, I cannot testify as to what might have been said at that meeting. I am sure it was the understanding of all of us that the Court had the jurisdiction to partition the community property and to fix the support payments, if any, which would be required of the father, and I am sure that everybody understood that the contract was subject to the approval of the Court as-with respect to those two matters, and that necessarily under the law, it was conditioned upon the divorce being granted, but I do not recall that there was any conversation about it, nor do I remember that there was any sort of qualification upon the contract, except what I have stated, and that is, it was conditioned upon the divorce being granted, and, of course, it was conditioned upon approval by the Court. It was executed, however, as a property settlement, with the expecation that it would meet with the approval of the Court of course, which is usually the case.

'Q. It was not an attempt at any time to usurp any of the authority of the Court, but to grant to him the full authority vested in him by the statutes; is that right? A. Well, certainly, there was no attempt to usurp the power of the Court, but, as I recall, the Court was encouraging our attempt to work this out, as this Court always does, I think.'

Among the findings of the Trial Court were these:

'7. The alleged contract sued on by plaintiff in this cause was not signed by the defendant in person. His attorney in the divorce proceeding who signed the alleged contract was not authorized to sign a contract binding the defendant to pay the $160.00 or any other sum of money for an indefinite time.

'8. The attorney who signed the alleged contract for the defendant testified that it was understood at the time said alleged contract was signed that the $160.00 payment was only a temporary matter and was not binding upon the defendant, but was intended to be only for the guidance of the Court at the time the divorce was granted and was to be subject to the further orders of the Court and that defendant stated that he would 'try' to meet the payments in the amount of $160.00 per month-the amount to be either increased or decreased as the financial ability of the defendant might develop in the future.'

There are several reasons any one of which is sufficient, in our opinion, to sustain the judgment of the Trial Court.

It is undisputed that the agreement sued upon was subject to the approval of the Trial Court. Contrary to the contention of appellant we do not believe that such agreement was approved, in toto, by the Court. An examination of the judgment will disclose that the agreement is not mentioned until partition of the community property is reached and only in connection with such...