Tully v. TullyTully v. Tully
- Reporters:
- ,
- Before:
- Shannon
Appellee Ward Kevin Tully and appellant Lisa Gwen Tully married in February, 1978, and separated in July, 1978. In August, 1978, appellee filed suit for divorce against appellant in the district court of Mills County. At the time suit was filed, the parties had no children, but appellant was pregnant.
The case was tried аnd the court pronounced judgment on November 8, 1978. The judgment was signed on Dеcember 13, 1978, at which time appellant still was not delivered of child. Thе judgment granted the divorce, appointed appellant “Manаging Conservator of the unborn child” and appel-lee “Possessory Cоnservator of the unborn child,” ordered appellee to pay child support of seventy-five dollars each month upon birth of the child, and divided the property of the parties.
Appellant does not complain of that part of the judgment granting the divorce or dividing the parties’ property. Appellant does complain of the appointment of conservators of the unborn child and of the order directing payment of child support upon birth of the child.
By her first point appellant claims as invalid and against “public policy” that part of the judgment determining conservator-ship and child support before the birth of the child. Appellant states, accurately, that at the time of the rendition of the judgment there was “ . . . no way the Court [could] prediсt such things as prenatal death, multiple births, deformities, complications concerning the medical costs, the welfare and health of the mother nor [sic] child.” Appellant does not articulate any legal theory for reversal nor does she advance any authorities in suрport of her position.
For years the courts have proteсted the interests of parties in similar situations. The district court could havе recited in the divorce judgment that appellant was pregnant with appellee’s child. After birth of the child, appellant could have filed pleadings in the same cause in which the divorce was granted to obtain an order appointing conservators and requiring apрellee to pay child support.
Ex parte Roberts,
139 Tex. 644, 165 S.W.2d 83 (1942);
Slattery v. Hatmaker,
255 S.W.2d 334 (Tex.Civ.App.1953, no writ);
This Court regards the part of the judgmеnt attacked as being in violation of the rule requiring subject matter of judgments to be certain and definite. It is said, generally, that a judgment must be certаin and definite. The validity and binding force of a judgment must depend upon faсts existing at the time of its rendition. A judgment may not rest upon what may or may not оccur after its rendition, and must take its validity from the action of the court and not from what persons may or may not do after the court has rеndered the judgment. 1 Freeman, Judgments, § 79 (5th ed. 1925). The courts in Texas have recognized, in different contexts, the rule requiring certainty in judgments. See Steed v. State, 143 Tex. 82, 183 S.W.2d 458 (1944); Sellman v. Lee, 55 Tex. 319 (1881); Spiva v. Williams, 20 Tex. 442 (1857); American Casualty and Life Insurance Co. v. Boyd, 394 S.W.2d 685 (Tex.Civ.App.1965, no writ). No reason occurs why the rule should not be applied to judgments ordеring child support payments.
*889 The part of the judgment appointing cоnservators and ordering child support for the unborn child could become effective only upon the happening of an uncertain futurе event: the birth of a child. As suggested by appellant, there were multiple contingencies that could occur that would prevent the judgment from becoming operative. Although it was certain on December 13,1978, thаt appellant was pregnant, it was surely uncertain and indefinite when, and if, she would be delivered of child.
That part of the judgment appointing conservators and ordering payment of child support is reversed and that part of the cause is remanded for new trial.
Reversed and Remanded.
SMITH, J., not sitting.