Ross v. Ross

• Decision Date: 01 March 1949
• Docket Number: Case Number: 33225
• Citation: 201 Okla. 174,1949 OK 35,203 P.2d 702
• Parties: ROSS v. ROSS
• Court: Oklahoma Supreme Court

1949 OK 35

203 P.2d 702

201 Okla. 174

ROSS v. ROSS

Case Number: 33225

Supreme Court of Oklahoma

Decided: March 1, 1949

Syllabus

¶0 1. DIVORCE - Award of custody of child to mother - Father's continuing duty to support.

A divorce decree, awarding custody of a minor child to the mother, does not destroy the relationship between father and child. As to the child, the father's duty and liability of support remains the same as theretofore, except (1) in so far as he is incapacitated; (2) in so far as the decree discharges and releases him from any natural, legal or statutory duty to support her; and (3) in so far as it can be said that the support and maintenance rendered by other parent was voluntary or without an agreement for compensation, and a separate suit may be maintained by the mother for the support and maintenance of said child.

2. SAME - Texas judgment not determinative of extent of liability of parent for support of minor child when all parties residing in Oklahoma.

A judgment of a sister state in a divorce case directing the father to pay $15 per month for the support of a minor child until she reached the age of 16 years, which has been fully complied with, is not determinative of the extent of the liability of the father under Oklahoma law for the support of the minor child when all parties are residents of Oklahoma.

3. PARENT AND CHILD - Error of court in rendering final order and judgment, without taking of proof in support of allegations in petition.

Where the liability of a father for support of a minor and the extent of that liability and the amount of attorney fees to be allowed is dependent upon the facts and cirumstances, the rendering of final order and judgment by the trial court requiring father to pay $25 per month from April 11, 1947, until January 11, 1949, support for minor, and $100 attorney's fees, without having heard proof thereof in support of allegations in petition, is error.

Appeal from District Court, Pottawatomie County; J. Knox Byrum, Judge.

Suit for support of minor child by Grace Ross against Elmer Ross. From final order and judgment of the trial court directing him to pay to Grace Ross the sum of $25 per month from April 11, 1947, until January 11, 1949, for the support of their daughter, Viola Ross, and $100 attorney's fees for plaintiff's attorney and costs, Elmer Ross appeals. Reversed, with directions.

John T. Levergood and M.L. Hankins, both of Shawnee, for plaintiff in error.

Van H. Albertson, of Shawnee, for defendant in error.

JOHNSON, J.

¶1 This is an appeal by Elmer Ross from final order and judgment of the trial court directing him to pay to Grace Ross the sum of $25 per month, from April 11, 1947, until January 11, 1949, for the support of their daughter, Viola Ross, and $100 attorney's fee for plaintiff's attorney and costs. On April 9, 1947, Grace Ross filed a petition in the district court of Pottawatomie county alleging that both she and Elmer Ross, defendant, were residents of said county; that they were formerly husband and wife, and had one child born of said union, Viola Ross, who was 16 years of age on January 11, 1947; that a divorce was granted the defendant in Nueces county, Texas, in 1942; that the care, custody, and control of the minor child, Viola Ross, by the decree in said divorce action, was awarded to Grace Ross, and that Elmer Ross was directed to pay the plaintiff the sum of $15 per month for child support until the child reached the age of 16 years; that on January 11, 1947, Elmer Ross stopped the payment of support and has paid nothing since; that the plaintiff was unable to support said minor child; that plaintiff and defendant and also the minor child all now live and reside in Pottawatomie county, Oklahoma; that the child is a minor and it is the duty of the father to support said minor child until she reached her majority.

¶2 After service of summons was made upon defendant, he filed a plea to the jurisdiction and a motion to dismiss, setting up the following grounds: That this is not a divorce action; that the minor child, Viola Ross, is under the jurisdiction of the district court of Nueces county; that the district court has no jurisdiction over minor children except in divorce actions; that the county court is given exclusive jurisdiction over minor children except in divorce actions; that in the divorce action in Nueces county, Texas, in 1942, a divorce was granted to the defendant herein and the custody of the minor child was given to the plaintiff, and the defendant was directed to pay to the plaintiff the sum of $15 per month, as support for said minor until such child reached the age of 16 years and that all payments had been paid until she reached the age of 16 years; that the question of child support had thus been adjudicated in Nueces county, Texas, and that the judgment had become final and was res judicata of the action and that the district court of Nueces county, Texas, had exclusive jurisdiction to change, modify, or extend payment in said case, and the district court of Pottawatomie county, Oklahoma, was without jurisdiction to hear said matter.

¶3 On April 30, 1947, the defendant filed a supplemental motion to dismiss, alleging that Viola Ross is the real party in interest and this is not a divorce action and could only be brought in the name of Viola Ross by and through her next friend as provided by the statutes. On May 1, 1947, after argument, the motion and supplemental motion were overruled.

¶4 On May 2, 1947, an order was entered directing the defendant to pay the plaintiff $25 per month during the pendency of the suit, payments to begin May 10, 1947, and also to pay suit money and temporary attorney's fee. On May 10, 1947, the defendant filed a motion to set aside the order of May 2, 1947, and on the same date filed a demurrer to the petition of the plaintiff stating the following grounds:

"(1) Because petition does not state a cause of action.

"(2) That the suit is not one for divorce nor custody of minor child, but a suit for support money, which had already been adjudicated in Nueces County, Texas. That the judgment thus rendered had been paid in full. That it was the only judgment the court of that state could render under the law of that state, was not appealed from and had become final and binding, and was res judicata to the present suit, all of which appeared on the face of the petition, and that the Court had no jurisdiction of such case.

"(3) Because the suit was not brought in the name of the minor by her next friend.

"(4) Because it is not alleged in the petition that the conditions had changed since the award by the Texas Court in 1942.

"(5) Because the plaintiff, Grace Ross, is not the real party in interest.

"(6) Because the judgment of Nueces County, Texas, as pleaded in the petition is a final judgment, and under the Full Faith and Credit clause of the Constitution of the United States, Article 4, Section 1, is res judicata to the present suit, this court having no jurisdicion to hear and try such case."

¶5 After argument on May 14, 1947, and the submission of briefs, subsequently, the trial court on July 1, 1947, overruled the motions and demurrer to the petition and rendered judgment for plaintiff. On the same day, motion for new trial was overruled and this appeal was perfected.

¶6 The evidence as to the law of the State of Texas as to the jurisdiction of a district court of that state in making an award for the support of minor children in divorce cases is conceded by both parties to be stated in section 4639-A, Vernon Civil Statutes of Texas, which in substance provides that the district court may in divorce cases by judgment order either parent to make periodical payments for the benefit of such child or children until the same have reached the age of 16 years, or said court may enter a judgment in a fixed amount for the support of such child or children and that said court shall have the power and authority to alter or change such judgments or suspend the same as the facts and circumstances and justice may require.

¶7 A simple statement of the facts and issues involved in this case are as follows: The plaintiff and defendant herein were husband and wife and had a minor daughter, Viola. In 1942, the husband brought an action against his wife for divorce in Nueces county, Texas, wherein the divorce was granted to him, but custody of the minor child was given to hiss wife. He was directed by that judgment to pay $15 per month...