Schlang v. Schlang

• Court: Texas Civil Court of Appeals
• Writing for the Court: WERLEIN; COLEMAN
• Citation: Schlang v. Schlang, 415 S.W.2d 28 (Tex. Ct. App. 1967)
• Decision Date: 20 April 1967
• Docket Number: No. 15009,15009
• Parties: Norman SCHLANG, Appellant, v. Jacqueline SCHLANG, Appellee. . Houston

Page 28

415 S.W.2d 28

Norman SCHLANG, Appellant, v. Jacqueline SCHLANG, Appellee.

No. 15009.

Court of Civil Appeals of Texas Houston.

April 20, 1967.

Rehearing Denied May 11, 1967.

Norman Schlang, pro se.

Murray L. Lieberman, Houston, for appellant, on motion for rehearing.

Carol S. Vance, Dist. Atty., James L. Muldrow, Asst. Dist. Atty., Houston, for appellee.

WERLEIN, Justice.

This is an appeal from the judgment of the Court of Domestic Relations No. 2 of Harris County, Texas, rendered under the Uniform Reciprocal Enforcement of Support Act, decreeing that appellant, Norman Schlang, pay the sum of $100.00 per month for the support and maintenance of his child, Cynthia Lynn Schlang, born May 18, 1964. The court decreed that the support payments beginning July 25, 1966 be paid to Harris County Support Department in Houston for transmittal to Family Court, State of New York, Nassau County, Westbury, New York. Appellee's petition for support, with all necessary attachments, was filed on May 18, 1966 in the office of the District Clerk of Harris County, Texas.

Appellant represented himself without the aid of counsel in the trial court, and is so representing himself on this appeal. Pursuant to the order of this Court he has rebriefed his case, but his amended brief filed herein consists in large part of irrelevant matters making it very difficult to sift out any alleged assertions of error on the part of the trial court pertinent to the evidence adduced at the trial. It is elementary that in passing upon appellant's points of error, this Court is restricted to the record before it. We are not authorized to consider statements in appellant's brief that are wholly outside the record and wholly unsupported by the evidence adduced at the trial.

Appellee's petition filed under the Uniform Support of Dependents Law of the State of New York, which is similar to the Texas Uniform Reciprocal Enforcement of Support Act, was accompanied by a copy of the New York Act duly certified. Said petition with its appendages was duly served on appellant, a resident of Harris County. Appellant filed his answer and motion to dismiss, a memorandum of points and authorities in support of such motion, and a 'Declaration in Explanation of Respondent's Proceeding in forma pauperis.' None of such documents was verified. The trial court found on the hearing of appellee's verified petition for support that appellant owed a duty of support of his minor child, Cynthia Lynn Schlang, and ordered payments as hereinabove stated. The case is before us on an agreed statement of facts, the pertinent part of which is here set out verbatim:

'The Respondent immediately stated to the Court that a Motion to Dismiss, previously submitted to the Court by the respondent, had not been acted upon; the Court thereupon inquired of Petitioner's legal representative whether or not he had received copies of said Motion, and said representative answered, yes: The Court then ORDERED Respondent to proceed, and at that time Respondent asked, 'does the Court desire depositions to be taken of the Petitioner or if service upon Petitioner of interrogatories should be made:' Thereupon, Respondent stated that under the Uniform Support of Dependents Law of the State of New York that he had a right to file cross-interrogatories. At this juncture, Petitioner's legal representatives interposed and stated that he had no objections to the filing of cross-interrogatories by the Petitioner. The Court then inquired of respondent as to whether or not he had ever been married to Petitioner, and he testified that he had; that a divorce decree had been awarded Petitioner and Respondent in the State of California on or about September 28, 1965. The Court then asked Respondent 'whether or not the California divorce decree made a final determination as to whether or not a child was born to Petitioner and Respondent during their marriage?' The Respondent then replied 'that the California Court had determined that a child, CYNTHIA LYNN SCHLANG, was born on May 18, 1964, and that he appeared personally and contested the same, but the California Court's only interest was for child support and his spouse's attorney fees, and that his purpose was to contest the paternity of said child in that proceeding, and that his purpose now is to contest the paternity of said child in this proceeding,' and Respondent further demanded the right to do so by filing cross-interrogatories for Petitioner, JACQUELINE SCHLANG, in the State of New York to answer. The Court overruled Respondent's request and ruled that 'the paternity of the minor child, CYNTHIA LYNN SCHLANG, was res adjudicata, inasmuch as Respondent was personally present at the hearing in the California divorce action. The Respondent then presented the argument to the Court that the Court was without Jurisdiction to adjudicate such matters or to make an order of support, and stated, 'that there had been a previous order in the California divorce decree, which prohibited the Petitioner, JACQUELINE SCHLANG, from removing the minor child, CYNTHIA LYNN SCHLANG, from the State of California to the State of New York, or any other State;

'Thereupon, Respondent, NORMAN SCHLANG, argued to the Court, that for the Court to make and enter an order of support requiring him to pay child support to Petitioner, for the benefit of said child, violated his constitutional rights of the U.S. Constitution, in that such an order indirectly compels him to contribute money to a religious belief unorthodox to his, that the child CYNTHIA LYNN SCHLANG, was being brought up and taught a religious order different than his. The Court then inquired, 'whether or not his former wife JACQUELINE SCHLANG, had been awarded legal custody of the minor child, CYNTHIA LYNN SCHLANG, in the California divorce decree.' Respondent replied 'YES'. THE COURT THEN OVERRULED THIS ARgument and StatEd that, 'the issue of religion was not germane to the issues raised in this cause of action,' and the Court further ruled that the primary issue was 'whether or not Respondent, NORMAN SCHLANG, owed a duty of support.' The Court then inquired of the Respondent, whether or not he was ordered to pay child support in the California divorce action, and he replied, 'Yes,' one hundred ($100) dollars per month, but that subsequent actions and contempt proceedings in the State of California adjudicated his non-liability for support, and Respondent cited California cases in support thereof. Then the Court asked Respondent, 'whether or not he was employed, and he announced 'Yes.' The Court thereupon...