Smith v. Givens, 12338.

• Citation: 97 S.W.2d 532
• Decision Date: 10 October 1936
• Docket Number: No. 12338.,12338.
• Parties: SMITH v. GIVENS.
• Court: Court of Appeals of Texas

Page 532

97 S.W.2d 532

SMITH v. GIVENS.

No. 12338.

Court of Civil Appeals of Texas. Dallas.

October 10, 1936.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Suit by Samuel A. Smith against Annie Smith Givens. Judgment for defendant, and plaintiff appeals.

Reversed and rendered.

Barnie Cantrell, of Dallas, for appellant.

L. P. De Lee and T. H. Marberry, both of Dallas, for appellee.

LOONEY, Justice.

The events leading to the present controversy are these: On May 29, 1934, the court below granted Annie Smith a divorce from Samuel A. Smith. Although other issues were presented by the pleadings, relating to the custody of Sammie Smith, a girl about ten years of age, the child of the parties, and also in regard to the division of community property and support of the minor child, the judgment rendered simply granted the divorce. It appears, however, that the little girl has remained with her mother, and that the parties made an agreement out of court dividing the property. The answer filed by the defendant in the divorce suit contained the following: "Defendant further stipulates and agrees that in event a divorce is granted the plaintiff herein, that plaintiff may be granted the care and custody of their minor child Sammie Smith, now aged eleven years, and defendant further agrees to pay for the support and maintenance of said minor child the sum of Five and no/100 ($5.00) Dollars per week, to be paid into the registry of court, during minority or until her marriage."

As heretofore stated, the court made no order with reference to the stipulation of the defendant to pay into the registry of court the $5 per week for the benefit of the child; however, he complied with the stipulation until his divorced wife married J. R. Givens, on November 6, 1935, but has since refused to make the weekly payments. On May 11, 1936 (nearly two years after the rendition of the divorce decree), Annie Smith Givens, joined pro forma by her husband, filed in the same court, adopting the docket number of the original divorce suit, a petition setting up the precedent facts, alleging that she, the mother, was unable to support, care for, and educate the child Sammie as should be done, but that defendant (the father) was amply able to contribute at least $10 per week for such purpose, and prayed for judgment directing defendant to pay into the registry of court that amount each week.

We think it obvious that plaintiffs' pleading, just mentioned, is based upon the idea that, the divorce decree was not final, but interlocutory, in that all issues presented in the pleadings were not explicitly disposed of, therefore she had the right to invoke the action of the court under article 4639a, Vernon's Ann.Civ.St., Acts of 1935 by the 44th Legislature, chapter 39 (enacted after the divorce decree was entered) to compel defendant to make periodical payments for the benefit of the child, as provided in said act. Defendant answered this petition by exceptions, general and special, and by a general denial, contending that the decree divorcing the parties was a final judgment, and that the statute in question enacted long after the judgment in the divorce suit became final, was not retroactive, hence not applicable, and could not be successfully invoked to sustain the proceedings. All exceptions were overruled, and on a hearing held May 13, 1936, the trial court judgment directed the defendant "to pay into the registry of this court the sum of Five Dollars per week, for the use and benefit of said minor, the first payment to be made the 30th day of May, 1936, and a similar sum of Five Dollars each Saturday of each week thereafter until said child reaches the age of sixteen years, or until the further orders of this court; and it is further ordered, adjudged and decreed that the clerk of this court shall pay said sum to the plaintiff herein for the use and benefit of said minor, said sums paid by the defendant, and that the plaintiff make monthly reports to this court of the disposition of said funds. Costs of this proceeding are taxed against the defendant."

On June 9, 1936, defendant (appellant herein) instituted the proceedings brought up for review, alleging the invalidity and void nature of the judgment or order, that plaintiff (appellee herein) was threatening to institute contempt proceedings against appellant, because of his failure to comply with the void order, and that she would do so, unless enjoined from enforcing or attempting to enforce said order, and from instituting contempt proceedings against appellant.

The application for injunction was answered by appellees, Annie Smith Givens and her husband, and on hearing June 13, 1936, was denied by the court, from which this appeal was taken. At the hearing, Mrs. Givens testified that she had consulted her lawyer with the view of having contempt proceedings instituted against appellant, to compel the weekly payments ordered by the court, and that she would do so if payments were not made.

The announcement of a few settled principles of law will, in our opinion, aid in a ready decision of the case. Our courts generally have held that an injunction affords the appropriate relief from a void judgment. See Glass v. Smith, 66 Tex. 548, 550, 2 S.W. 195 (citing Smith v. Deweese, 41 Tex. 594, 595...