266 S.W. 444 | Tex. App. | 1924
This is an appeal from a judgment in favor of appellee, Mrs. Ola Chumley, against appellant, George Hartman, for the sum of $2,770 for necessaries furnished by appellee for the support and maintenance of the minor child of appellant and herself. Appellant and appellee were married February 11, 1915. They lived together as husband and wife until April 20, 1915. On May 8, 1915, appellee filed her *445 suit for divorce on the ground of cruel treatment, and on June 17, 1915, the court granted her a divorce dissolving the bonds of matrimony theretofore existing between her and appellant. The child for whose support said judgment was recovered was born December 19, 1915, six months after the date of said divorce and eight months after the separation of its parents Appellant does not complain of the amount of the judgment Neither does he complain of the procedure in the case, except as hereinafter shown. His sole contention is that appellee is estopped on equitable grounds to assert that he is the father of the child or that he is liable for its support. This contention is not based on any question of the actual paternity of the child. No such issue is even intimated either in the pleadings or the evidence. Neither does appellant deny that the father of a child is ordinarily legally liable for its support, though he is divorced from its mother, and though such child is under the exclusive custody and control of its mother. The contention seems to be based solely on the fact that the petition for divorce filed by appellee and upon which said divorce was granted contained the following allegation:
"That there will be no issue or child from said union, and she desires her maiden name restored, to wit: Ola Chumley."
Appellant contends that he relied on said allegation in appellee's petition, and that had such allegation not been made he would have contested appellee's right to a divorce, and that it is impossible to now place him in statu quo, and that appellee is therefore estopped to deny the truth of such allegation. The record shows that during the pendency of the suit for divorce the property rights of the parties were adjusted by agreement. By the terms thereof appellee agreed to withdraw her claim for any interest in the property of appellant of every kind and character, and agreed that judgment should be entered in his favor for all such property, and admitted that there was no community property and that she had no separate real estate. Appellant agreed therein to pay appellee the sum of $59 and to pay all costs of court and an attorney's fee for appellee in the sum of $50. The judgment of the court recited that appellant appeared by answer therein. Such judgment granted appellee a divorce, restored her maiden name, and ordered appellant to pay the costs, and declared that there was no community property and no separate estate of appellee.
In support of his plea of estoppel, and in connection with his contention that he would have contested appellee's suit for divorces if she had not alleged there would be no issue of their marriage, appellant sought to prove that the grounds for divorce alleged by appellee in her petition therefor were not true, and that she did not in fact have any ground for divorce. The court refused to hear such testimony, and such refusal is assigned as error. The judgment of the court in said divorce suit adjudicated appellee's right to a divorce on the grounds alleged in her petition. As against a collateral attack, as was so attempted by appellant, it imported absolute verity, and precluded a reexamination into the truth of the matters so decided by either of the parties thereto. 21 C.J. p. 1063, § 21; Bryan v. Bridges,
The allegation in appellee's petition in her divorce case that there would be no issue of the marriage sought to he dissolved was immaterial to any issue involved in said suit. The right of either spouse to a decree of divorce on grounds authorized by statute is not in any way dependent on whether issue of the marriage exists at the time or whether the birth of issue in the future may reasonably be anticipated. The court did not in said suit attempt to determine or declare that there would be no issue of such marriage, and properly so, because the existence of issue, present or prospective, was wholly immaterial to any relief sought therein. No estoppel by such judgment was shown. Cook v. Burnley,
"The elements present in an estoppel by conduct are summarized in Bigelow on Estoppel, 484: (1) `There must have been a false representation or concealment of material facts.' (2) `The representation must have been made with knowledge of the facts.' (3) `The party to whom it was made must have been ignorant of the matter.' (4) `It must have been made with the intention that the other party should act upon it.' (5) `The other party must have been induced to act upon it.' These rules are practically recognized by our courts in the decisions upon the subject. (
Before the trial court could find that an equitable estoppel existed in this case, it devolved upon appellant to support his contention by proof of each of such constituent elements. Appellee testified that the reason she made in her petition for divorce the allegation under consideration, was that she wanted her maiden name restored. Such allegation was wholly unnecessary for that purpose. The power of the court to grant such relief is in no way restricted to cases in which there are no children of the marriage. She also testified that before the trial *446 of the case she consulted a reputable physician to ascertain whether there would be any issue and that he informed her there would be none, and that she did not know anything to the contrary. No other testimony on this subject was introduced. There is nothing in evidence to indicate that her mistake was not an honest one, nor that she was culpably negligent in so believing. Such being the case, no estoppel arose. 21 C.J. pp. 1125-6, §§ 128-9. If it had been shown that she was conscious at the time she made said allegation, that she was ignorant of her real condition but professed knowledge of the same for the express purpose of inducing appellant to act thereon, a different question would be presented. 21 C.J. p. 1124; Taylor v. Tompkins, 1 White W.Civ.Cas.Ct.App. p. 589, § 1051. Whether the evidence in this case was sufficient to raise such issue we need not determine, because such evidence is clearly insufficient to establish the same as a matter of law.
Whether appellant acted on such allegation to his prejudice, and by such action changed his condition for the worse, was also an issue of fact to be determined by the trial court from the evidence. Appellee testified that the $59 paid her by appellant, under the terms of the agreement above referred to, was to repay her for her separate money earned before her marriage which she had loaned to appellant. This testimony was not controverted. The costs of court and the 850 paid by appellant to appellee's attorney in said case, were charges which the court could have properly allowed as incident to appellee's recovery of judgment for divorce. The only testimony on the subject of appellant's acting on the supposed truth of such allegation was his own and was as follows:
"At the time that divorce suit was filed and tried, the plaintiff alleged in her petition that there would be no child or issue of the union, and I relied upon that allegation at the time the suit was tried and I did not contest the suit. If I had known that there would be a child, I would not have allowed her to get the divorce if I could possibly have prevented it."
Appellant being a party to the suit and interested in the result of the same, his credibility as a witness and the weight to be given his testimony was for the court trying the case, and the court was authorized in his discretion to disregard such testimony, though the same was not contradicted. Moore v. Moore (Tex.Civ.App.)
While it is the legal as well as the moral duty of both parents to support their offspring, such duty rests primarily upon the father. He is not absolved nor discharged from such duty though he may be divorced from the mother, nor though such mother may have exclusive custody and control of the child. Gulley v. Gulley,
The judgment of the trial court is affirmed. *447
