Rhoades v. Fredwell

• Decision Date: 16 January 1946
• Docket Number: No. 9534.,9534.
• Citation: 192 S.W.2d 295
• Parties: RHOADES v. FREDWELL.
• Court: Texas Court of Appeals

Page 295

192 S.W.2d 295

RHOADES v. FREDWELL.

No. 9534.

Court of Civil Appeals of Texas. Austin.

January 16, 1946.

Rehearing Denied February 6, 1946.

Appeal from District Court, Williamson County; D. W. Wilcox, Judge.

Proceeding by Miller Rhoades against Albina Fredwell, formerly Albina Rhoades, for change of custody of two minor children. From a judgment of dismissal, plaintiff appeals.

Affirmed.

E. M. Grimes, of Taylor, for appellant.

W. K. McClain, of Georgetown, for appellee.

BLAIR, Justice.

Appellant, Miller Rhoades, sued appellee, Albina Fredwell, his former wife, for change of custody of their two minor children whom the court had awarded to appellee when she obtained her divorce from appellant. Appellee filed a plea in abatement, suggesting that her present husband, Clifford Fredwell, who was in the armed forces of the United States and temporarily in Williamson County, was a necessary party. On the hearing of this plea it was stipulated that Clifford Fredwell was a member of the armed forces and was temporarily in Williamson County, where this proceeding was pending. Counsel for appellant then stated that he did not intend to make the present husband of appellee a party, because he did not regard him, the stepfather, as being a necessary party to the proceeding for change of the custody of the minor children. Whereupon the trial judge sustained the plea in abatement and dismissed the proceeding; hence this appeal.

Appellant presents one point or question, that "the court erred in sustaining appellee's contention that her present husband is a necessary party defendant to this proceeding."

The facts alleged by the pleadings, and as hereinabove stipulated, are in substance as follows:

Appellant, Miller Rhoades, and appellee, Albina Fredwell, were husband and wife prior to September 21, 1942, when appellee obtained a decree of divorce from appellant and was awarded the custody of the two minor children of the marriage. The divorce decree further provided that appellant pay to appellee $70 per month for the support and maintenance of the minor children until Eugene Rhoades, a boy, should reach the age of 16 years, and thereafter to pay the sum of $50 per month for the support of Evangeline Rhoades, a girl, until she reached the age of 16 years; which decree was in accordance with the terms of a contract entered into between the parties and filed in the divorce proceedings.

After the divorce decree appellant married another spouse, and appellee married Clifford Fredwell. On August 18, 1945, appellant filed in the original divorce proceedings what was titled "Plaintiff's Motion for Court to Order Change with Respect to Custody of Minor Children and Allowance for Their Support." The changed conditions and circumstances alleged as necessitating the relitigation of the custody of the children were that appellee and her mother lived in adjoining homes, were associated in allowing soldiers and other persons, particularly boys and men, to come to their homes for the purpose of drinking intoxicants and sleeping in beds and cots furnished them, and whose language and conduct rendered morally unfit the environments under which the minor children had to live; and that the inattention of appellee to the schooling of Eugene Rhoades, a boy aged 12, had resulted in practically no advancement in three years, he being in the third grade, and that with proper attention he should advance in his school work comparable to that of the average child of his age.

Appellant further alleged that either he and his present wife, or the grandparents of the children, or a sister of appellant were ready, willing and able to support and properly educate said minor children, and to afford them the moral environments under which they should be reared.

The general rule in Texas is that in all suits against the wife the husband is a necessary party to the suit. Art. 1985 of Vernon's Annotated Texas Civil Statutes provides that "the husband shall be joined in suits for separate debts and demands against the wife, but no personal judgment shall be rendered against [him]."

Speer's Marital Relations, 3d Ed., pp. 642-644, Sec. 253, reviews at length the decisions construing the foregoing statute, which hold the general rule to be that in all suits against the wife the law directs that the husband be sued with her, whether in an action where he is individually liable or not, to the end that she may have his aid and counsel, and that her rights will be protected by the person to whom the law entrusts those rights generally; and that the law presumes that the advice and assistance of the husband in the preparation and prosecution of her defense will be helpful to her. Exceptions to this general rule are where the husband's whereabouts is unknown, or he is not within the jurisdiction of the court, or where he is insane or in prison, or in the limited instances where the statutes or decisions authorize the wife to be sued upon her contracts. None of these exceptions exists here, and we think that the general rule stated is applicable. Taylor v. Murphy, 50 Tex. 291; Cullum v. Lowe, Tex.Civ.App., 9 S.W.2d 70; Tannehill v. Tannehill, Tex.Civ.App., 171 S.W. 1050; Powell v. Dyer, Tex.Civ.App., 227 S.W. 731; Taylor v. Hustead, Tex.Com. App., 257 S.W. 232; and Carroll v. Embry, Tex.Civ.App., 229 S.W. 575.

The decisions also hold that where the wife is alone sued she must plead her coverture, which appellee did in the instant case, and that it then becomes the duty of plaintiff to make the husband a party to the suit. Taylor v. Hustead, supra; Powell v. Dyer, supra; Lopez v. Mexico-Texas Petroline & Asphalt Co., Tex.Civ.App., 281 S.W. 326; Lee v. Hall Music Co., 119 Tex. 547, 35 S.W.2d 685. See also Art. 2084, R.S.1925, the provisions of which are indicative of the legislative policy to require that where the wife is sued the husband should be sued with her. Reed v. Cavitt, 10 Tex.Civ.App. 373, 30 S.W. 575. The wife, sued alone in the instant case, plead her coverture, from which act it must be presumed that it was her desire that her husband should be made a party so that he might be allowed to give her the aid and counsel guaranteed by the law in such cases. It is true that no personal judgment could be rendered for or against the husband of appellee in respect to the custody of the minor children whom the court had theretofore awarded to her, which is the issue involved or subject matter of the instant suit. The wife alone could defend such suit; but that question is aside the point here presented. The question here presented is whether under her plea of coverture she is entitled to require that her present husband, the stepfather of the minor children, be made a party so that he may have the opportunity legally to aid, counsel and protect her in the defense of her right to the custody of the minor children whom the court had theretofore awarded to her when she was granted a divorce from appellant. We think that appellee was entitled to have her present husband made a party to the proceeding.

In the first place, the foregoing rule of law guarantees to the wife the right that in all suits against her the husband shall be also sued to the end that he may aid, protect, assist and give counsel to her in the defense of the suit, which in the instant case would be in defense of her right to the custody of her minor children of a former marriage. This right is not a...