Mobley v. Mobley
| Decision Date | 06 April 1949 |
| Docket Number | No. 11926.,11926. |
| Citation | 221 S.W.2d 565 |
| Parties | MOBLEY v. MOBLEY. |
| Court | Texas Court of Appeals |
Appeal from District Court, Seventy-third District, Bexar County; Delos Finch, Judge.
Action for divorce by Robert N. Mobley against Alma Sue Mobley. From a decree granting plaintiff's motion to reduce amount he was required to pay for child support, defendant appeals.
Modified and affirmed.
Dilworth & McKay, San Antonio, for appellant.
L. M. Bickett, San Antonio, for appellee
On June 3, 1947, Robert N. Mobley, plaintiff, secured a divorce from Alma Sue Mobley, defendant. The decree contained the following provisions:
On the 6th day of August, 1948, the district court, acting upon a motion filed by Robert N. Mobley, reduced the amount which he was required to pay to Alma Sue Mobley for the support of their minor children from $200 per month to $50 per month. From this order Alma Sue Mobley has perfected an appeal to this Court.
In contesting this order, Mrs. Mobley contends that the provision for child support contained in the original decree is contractual in nature and should be "considered and governed by the laws relating to contracts rather than the laws relating to judgments." The authority upon which she primarily relies is Plumly v. Plumly, Tex.Civ.App., 210 S.W.2d 177, a recent decision of this Court.
Prior to the divorce, Mr. and Mrs. Mobley entered into the following agreement:
It appears that Robert N. Mobley, in his petition for divorce, pleaded that he was willing for the defendant to have the care and custody of the minor children and he was willing to provide $200 per month for their support.
From an inspection of the face of the divorce decree it appears that the judge rendering the same treated the matter of child support and the settlement of community property rights as separate matters. The paragraph relating to child support does not show that it was based upon an agreement of the parties. In fact, it does not follow the terms of the agreement, in that the provision relating to the length of time during which the payments shall be made — until the children are through with their schooling — is omitted.
Upon the face of the decree, it appears that the provisions relating to child support are based upon the terms of Article 4639a, Vernon's Ann.Civ.Stats. We do not construe appellee's motion to modify the decree as attacking the contract, nor do we think the order of the court rendered thereon affects appellee's contractual obligations in any way. The contract remains a valid, subsisting obligation and may be enforced by means of the ordinary processes of law, unless and until it be cancelled or modified in a proper proceeding. Belstrom v. Belstrom, Tex.Civ.App., 144 S.W. 2d 614. The agreement involved here can not be enforced by means of a trust devise, as was the agreement in the case of Plumly v. Plumly, Tex.Civ.App., 210 S.W.2d 177, for the reason that the present agreement did not provide for a trust arrangement.
A judgment may partake of the nature of a contract and also of the nature of a decree as authorized by Article 4639a. Belstrom v. Belstrom, Tex.Civ.App., 144 S.W.2d 614 (). However, contractual provisions, even though made part of a decree, insofar as they go beyond the provisions of the statute, cannot be enforced by contempt proceedings, and all support provisions enforcible by contempt proceedings are subject to modification under the express terms of the statute.
Article 4639a, § 1, Vernon's Ann.Civ. Stats., reads as follows: ...
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