Gully v. Gully

LEVY, J. (after stating the facts as above). By the second and third assignments of error it is contended that the incidental decree of April 4, 1913, entered in the divorce proceed *1179 ings, upon which Mrs. Gully solely predicated her right for relief in the instant suit, was legally void and inoperative, and therefore the court was without jurisdiction over the subject-matter pleaded to grant the relief of the present judgment of March 31, 1914, appealed from. "We therefore review the aver-ments of the motion as in the nature of a general demurrer. It is thought that the petition or motion sues upon the incidental decree entered on April 4, 1913, in a divorce proceeding, with the object of having its terms carried into effect by order of sale. In granting a divorce, the court may make such division, at least of the community property, in reference to the condition of the parties, and support and education of the children, as may be equitable and just. Article 4634, R. S. The court, as appears from the averments, made such division of the community property as to him seemed proper, and ordered it set aside and delivered to the separate possession of each party; and the custody of the children was, it appears, awarded to the mother, as the court had authority to do. Article 4641, R. g. But in respect to the future maintenance of the children the court, it is averred, directed the payment by each parent of a monthly stipend, and made it a charge or lien on the respective community property set aside to each parent; and the very question here is as to the authority of the court to make this character of provision for the children as averred in the motion. If the court lacked the power to enter an incidental decree at all of the character in question in a divorce case, it would be void and inoperative, and consequently the instant proceedings to enforce its terms could not be legally maintained. In appeal direct from similar incidental decrees they have been held void and inoperative upon the ground of lack of power in the court in a statutory proceeding for divorce to make incidental decrees against the parents in personam for payment of a monthly stipend in future support of their children. Ligon v. Ligon, 39 Tex. Civ. App. 392, 87 S. W. 838; Bond v. Bond, 41 Tex. Civ. App. 129, 90 S. W. 1128; Barry v. Barry, 131 S. W. 1142; Martin v. Martin, 148 S. W. 344. As clearly explained in Martin v. Martin, supra, the powers of a court in a divorce case before him are purely of statutory authority, and he may not go to the extent of exercising powers not conferred by law upon him, and an incidental decree against the parent in personam for payment of a monthly stipend in future support of his children is beyond the powers of the court to enter in a divorce case. It is to be understood that this form of order is, legally speaking, treated more in the nature of a direction to do than as a decree or judgment as such. These cases decide, we think, the question here. It is not thought that the case of Schultze v. Schultze, 66 S. W. 56, cited by defendant in error, furnishes authority for holding that the incidental decree involved here was not void and inoperative. The decisive ruling in that case was distinctly placed upon the ground that the death of the father of the child since the suit abated any action by Mrs. Schultze. The remark there concerning the conclusiveness of the incidental decree was dictum. The gupreme Court, on writ of error, approved merely the ruling in making-disposition of the case in respect to Mrs. Schultze. Rilling v. Schultze, 95 Tex. 356, 67 S. W. 401. It is concluded that the court in the instant case did not have the authority to enforce the incidental decree as far as awarding monthly stipend in future support of the children, as sought by the pleading, and the judgment appealed from is reversed; and the judgment is here rendered that the trial court should have rendered, dismissing the suit, with all costs against defendant in error. Whether the mother could or could not maintain a suit in common-law action against the father for the children’s necessary suppiort and education is not a question presented by the record, and we pass no opinion in that respect. Reversed, and suit dismissed. Footnotes [1] (g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes