McAfee v. McAfeeMcAfee v. McAfee
- Reporters:
- ,
- Before:
- Young
The appeal is from an order reducing the support awarded Dianne Hоpe McA.fee, a minor, of $160 per month in decree of divorce datеd July 28, 1949; the reduction to $100 per month being consequent upon motion heard ‘and grаnted in part on December 5, 1951.
Along with the prior judgment of divorce, a proрerty settlement had been consummated and approved .by the court, whеrein permanent custody of the child was .awarded appellant mother; McAfee (defendant) contracting to pay toward its support until 21 years of age the sum of $160 per month. The divorce decree, however, contained independent findings in award of custody to Mrs. McAfee; the $160 monthly payments being in connection with the recital that defendant was well able •to contribute suсh sum, which should continue “subject to the further orders of this court.”
The order for reduсtion of child support here complained of followed testimony of both parties; the court finding that since the 1949 judgment, defendant’s income had been substantially reduced “and that he is unable to pay the sum of money heretoforе ■ordered”; finding $100 per month to be a -reasonable amount to continue in sеmimonthly installments until “further ordered by the court.”
Appellee’s motion to dismiss causе for want of jurisdiction, timely filed, must be first disposed of, and upon consideration is sustаined. The order on its face is interlocutory, and necessarily so, under Vernon’s Ann.Civ.St. art. 4639a, empowering the divorce court to alter or change its judgment relative to child support “as the facts and circumstances and justice may require, * * * ”; and such an order, until otherwise provided by Texas Rules of Civil Procedure, is not ap-pealable. Berg v. Berg, Tex.Civ.App., 232 S.W.2d 783; 3-A Tex.Jur., p. 115. Appellant cites Brady v. Hyman, Tex.Civ.App., 230 S.W.2d 342, in support of argument to the contrary, but there the aрpeal was from an amended decree of divorce wherein the prior contractual prоvision relative to child support was substantially modified. Here the support рrovision of the 1949 judgment was independent of the contract and clearly referable to Art. 4639a; any order for support pursuant to same being subject tо alteration or change as the facts and circumstances may requirе. The order of reduction in question did not purport to interfere with said prior сontractual obligation; for, as stated in the Brady-Hyman appeal, child suрport provisions of a judgment, when based, on contract, are not subjeсt to change in absence of fraud, mistake, or consent of the parties. However, for greater clarity, the order in question should ¡have recited thаt appellee’s contractual obligations in matter of child suppоrt were not .to be affected thereby.
Even if jurisdiction of this order be assumed, wе would be required to sustain it. Amount of support in these cases is always depеndent, not only upon needs of the child, but upon ability of the parents to contribute; and here the father has testified to a substantial reduction in income. He has remarried, which is of course his right. And we are not unmindful, in these inflationary times, of thе mounting expense incident to proper rearing of an eleven-yeаr-old girl. But amount of support under the statute turns upon the varying financial circumstances of the responsible parent; *312 and considering the wide latitude of disсretion vested in the divorce court, as regards the enforcement of Art. 4639а, we would be duty ‘bound to affirm the instant order of reduction. “In determining the duty of the husband tо supply necessaries to his children, before or after divorce, it is to be borne in mind that his duty corresponds to his financial ability, having due regard to all his lawful оbligations, which may include those assumed to another wife and to other children, and in no event is he liable for food, clothing, attention, or education other than such as is suitable to his and their circumstances in life.” Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 100, 15 A.L.R. 564.
On grounds heretofore stated, however, the appeal is dismissed for want of jux-is-diction.