Plumly v. Plumly

• Decision Date: 03 March 1948
• Docket Number: No. 11803.,11803.
• Citation: 210 S.W.2d 177
• Parties: PLUMLY v. PLUMLY.
• Court: Texas Court of Appeals

Page 177

210 S.W.2d 177

PLUMLY v. PLUMLY.

No. 11803.

Court of Civil Appeals of Texas. San Antonio.

March 3, 1948.

Rehearing Denied April 7, 1948.

Appeal from District Court, Forty-Fifth District, Bexar County; C. K. Quin, Judge.

Action by Jane Jackson Plumly, now Dawson, against Henry Curtis Plumly for divorce, wherein a decree was rendered providing for support and maintenance of two minor children. From an order overruling defendant's motion for modification, defendant appeals.

Affirmed.

Woodville J. Rogers, of San Antonio, for appellant.

Kampmann & Burney, of San Antonio, for appellee.

MURRAY, Justice.

This is an appeal from an order of the 45th District Court of Bexar County, Texas, overruling the motion of Henry Curtis Plumly for a modification of a decree of divorce rendered in said court in cause No. F-17164, styled Jane Jackson Plumly (now Dawson) v. Henry Curtis Plumly, on May 29, 1944, wherein provision was made for the support and maintenance of two minor children, Henry Curtis Plumly, Jr., and Ben Jackson Plumly. The motion was based upon the proposition that one of said children since the decree of the court was rendered had attained his majority, quit school, had married and had moved to South America to accept employment.

The original decree of divorce reads, in part, as follows:

"On this the 29th day of May, A. D. 1944, came on to be heard the above styled and numbered cause, and the plaintiff and defendant, both being present in open court and represented by counsel, and a jury being waived, all matters of fact as well as of law were submitted to the court, and the court having heard all of the evidence and the argument of counsel, is of the opinion that the allegations of plaintiff's first amended original petition, insofar as they apply to the question of divorce, are true, and that the plaintiff should be given a divorce from the defendant.

"The court further finds that the plaintiff is a proper person to have the care and the custody of the two minor children born to the marriage of plaintiff and defendant, and that she should be awarded their custody;

"The court further finds that the defendant should provide for the support, maintenance and education of the two minor children of the marriage and that a portion of his separate property should be placed in trust and the income thereof turned over to the plaintiff for the purpose of being expended for the support, maintenance and education of the two minor children of said marriage;"

At this point in the proceedings the parties entered into the following property settlement agreement, the pertinent parts of which read as follows:

"Whereas, in Cause No. F-17,164, styled Jane Jackson Plumly v. Henry Curtis Plumly, in the District Court, 45th Judicial District of Bexar County, Texas, the plaintiff, Jane Jackson Plumly, sues the defendant, Henry Curtis Plumly, for a divorce and division of the community property, for an interest in all of his separate property, and for the care and custody of the two minor children and for their support and maintenance; and,

"Whereas, the court has announced his intention in the final decree to grant the plaintiff a divorce and to divide the community property equally between the plaintiff and the defendant, to grant the plaintiff the custody and control of said two minor children named in said petition, provide for their support and maintenance, and to deny the plaintiff any right, title or interest in and to the defendant's separate property; and,

"Whereas, after the court had made its views known to the parties and their counsel, they retired from the courtroom and entered into the following agreement with reference to said community property, the support and maintenance of the children and the defendant's separate property, towit:

"I. The defendant, Henry Curtis Plumly, will pay to the plaintiff, Jane Jackson Plumly, the sum of $60,000.00, payable $30,000.00 in cash upon the entry of the final decree, and $30,000.00 additional, represented by a promissory note payable to Jane Jackson Plumly, dated as of the day of the decree, due on or before one year from date, bearing interest at the rate of 3% per annum, payable at San Antonio, Texas, and secured by a deed of trust mortgage lien on the property located at 309 Hermosa Drive, East, in Olmos Park Estates, in the city of San Antonio, Bexar County, Texas, and further secured by a tract of land containing 289.89 acres located near Crystal City in Zavalla County, Texas, and known as the Crystal City Farm, said mortgage and said note to be in the usual form for such instruments.

"II. The plaintiff, Jane Jackson Plumly, will accept said sum of $30,000.00 and said promissory note for $30,000.00 so secured, in full and final settlement of all her right, title and interest in and to all of the community property of the plaintiff and defendant and all of the separate property of the defendant, both real, mixed and personal, which includes all of the property decribed in plaintiff's petition, and all of the property, either real or personal, belonging to the community estate of the plaintiff and the defendant, and all of the separate property owned, held or claimed by the defendant.

"III. That the said Jane Jackson Plumly agrees and obligates herself to execute any and all instruments and conveyances as will be necessary to make this agreement effective and binding upon her. * * *

"V. It is further agreed that the defendant, Henry Curtis Plumly, will place in the Trust Department of the Frost National Bank 5,245 shares of Socony-Vacuum stock, with directions to said ...