Beeler v. Beeler

218 S.W. 553 | Tex. App. | 1920

This is a suit for a divorce from the bonds of matrimony filed by the wife, Bettie Beeler, against her husband, Charles Beeler.

The petition was filed on the 10th day of April, 1919. Charles Beeler filed his answer on the same day the petition was filed. The cause was heard, and judgment entered on the 12th day of April, 1919. Article 4632, Vernon's Sayles' Civil Statutes, provides that no suit for divorce from the bonds of matrimony shall be maintained in the courts of this state unless the petitioner for such divorce shall, at the time of exhibiting his or her petition, be an actual bona fide inhabitant of this state for a period of 12 months, and shall have resided in the county where the suit is filed 6 months next pre ceding the filing of the suit. The petition does not state the jurisdictional fact of the 12 months residence in this state. The same article of the statute further provides that such suit shall not be heard or divorce granted before the expiration of 30 days after the suit is filed. Here the suit was heard and divorce granted on the second day after the suit was filed. This was in direct violation of the provision of the statute. The statutory provision is mandatory, and compliance with its terms cannot be waived or dispensed with. Haymond v. Haymond, 74 Tex. 414, 12 S.W. 90; Brashear v. Brashear, 99 S.W. 568. There are other pro visions of the same article of our statute, above referred to, to which we call the attention of the trial court in entering the decree.

Appellant complains of the following order of the court as to the alimony incorporated in and made a part of the decree of the court in granting the divorce:

"It is further considered and adjudged by the court that the plaintiff, Bettie Beeler, also have judgment against defendant, Charles Beeler, for the sum of fifty dollars for attorney's fees, and the further sum of $25.00 per month as alimony, same to be paid monthly by defendant, Charles Beeler, until further ordered by the court, for all of which let execution issue."

In view of another trial, we think it well to say that the order granted is objectionable. Article 4640, Vernon's Sayles' Civil Statutes, provides that the judge may, either in term time or in vacation, allow the wife a sum for her support until a final decree shall be made in the case. In Pape v. Pape, 13 Tex. Civ. App. 99, 35 S.W. 479, it is said that in the absence of direct statutory authority, a decree for alimony, pendente lite, cannot be appended to a decree dissolving a marriage. There can be no question but that, where the facts justify the granting of alimony, an order granting alimony pending an appeal may be made, to continue in force until the termination of the appeal. Williams v. Williams, 60 Tex. Civ. App. 179, 125 S.W. 937, 1199; Ex parte Lohmuller,103 Tex. 474, 129 S.W. 834, 29 L.R.A. (N.S.) 303. In the last-cited case the Supreme Court makes it quite clear that so long as the appeal is pending the suit is pending, and the occasion specified in the statute for the allowance of alimony continues, and it does not end until that decree is pronounced which puts an end to the case. The court further said that the jurisdiction sometimes remains in the trial court to take action authorized by law in the case for the protection of persons and property in the control of the court, the necessity for which may arise after the judgment has been pronounced. As we understand the holding, an appeal does not prevent the granting of alimony pending the appeal, but the order of alimony continues and terminates with the final decree on appeal. Again, alimony is not in the nature of a debt for the collection of which an execution may issue. The order is enforced by contempt proceedings. Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 17 L.R.A. (N.S.) 1140.

The order is objectionable also as to form, as possibly it would destroy the finality of the decree. Gaffey v. Criteser et ux.,195 S.W. 1166.

For reasons stated, the judgment is reversed and remanded.