McAfee v. McAfee, A-3819

• Decision Date: 04 February 1953
• Docket Number: No. A-3819,A-3819
• Citation: 255 S.W.2d 185,152 Tex. 156
• Parties: McAFEE v. McAFEE.
• Court: Texas Supreme Court

Page 185

255 S.W.2d 185

152 Tex. 156

McAFEE v. McAFEE.

No. A-3819.

Supreme Court of Texas.

Feb. 4, 1953.

Rehearing Denied March 4, 1953.

J. Manuel Hoppenstein, Dallas, for petitioner.

Burt Barr, Dallas, for respondent.

SMITH, Justice.

On July 28th, 1949, a judgment was rendered and entered in a cause numbered and styled 33947-Millicent Ann McAfee v. John M. McAfee, District Court, Dallas County, Texas, dissolving the bonds of matrimony between petitioner and respondent, and awarding the care and custody of their minor child, Dionne Hope McAfee, to petitioner. The judgment further ordered, adjudged and decreed that respondent pay to petitioner the sum of $160 per month for the support of said child, 'or until further ordered by the court and subject to the further orders of this court.'

On August 24, 1951, respondent filed a motion in the same case alleging that conditions had materially changed, in that, his income had been substantially reduced, and that the sum of $40 per week was more than sufficient to support the minor child. The petitioner filed her answer, and on the 5th day of December, 1951, the court, without the aid of a jury, after hearing the pleadings, evidence and argument of counsel, entered its judgment reducing the sum for the support of the child to $100 per month.

Petitioner perfected her appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas. That court sustained the motion of respondent to dismiss the appeal, holding that the judgment entered on December 5, 1951, was interlocutory 'and necessarily so, under Vernon's Ann.Civ.St. art. 4639a, * * * is not appealable.' 250 S.W.2d 310, 311. This Court had granted a writ of error.

Article 4639a reads as follows:

'Section 1. Each petition for divorce shall set out the name, age, sex and residence of each child under sixteen (16) years of age born of the marriage sought to be dissolved, if any such child or children there be; and if there be no such child or children, then the petition shall so state. No Court having jurisdiction of suits for divorce shall hear and determine any such suit for divorce unless such information is set out in such petition or in each cause of action for divorce. Upon the trial of any such cause, and in the event a divorce is granted by the Court, if there are such minor children, it shall be the duty of such trial Court to inquire into the surroundings and circumstances of each such child or children, and such Court shall have full power and authority to inquire into and ascertain the financial circumstances of the parents of such child or children, and of their ability to contribute to the support of same, and such Court shall make such orders regarding the custody and support of each such child or children, as is for the best interest of same; and said Court may by judgment, order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of sixteen (16) years, or, said Court may enter a judgment in a fixed amount for the support of such child or children, and such Court shall have full power and authority to enforce said judgments by Civil Contempt proceedings after ten...