Untitled Texas Attorney General Opinion

THEA ORNEY GENERAL OFTEXAS March 21, 1961 Miss Edna Cisneros Opinion NO. IN-1023 county Attorney Willacy County Re: Jurisdiction of County Court to enter Raymondville, Texas order for support, Pendente Lite, pursuant to Art. 604 V.P.C., when there is a District Court order for support. Dear Miss Cisneros: You have asked the following questions: "1. Does the County Court have jurisdiction to enter an order for support, pendente lite, after the filing of a complaint against a defendant for the crime of child desertion when the complainant and defendant are divorced in a Texas District Court and the Court has entered an order for support? "2. Is an order of the County Court for support, pendente lite, still valid and subject to enforcement by con- tempt proceedings in the criminal case when the parties, after the filing of the criminal complaint, have been divorced and an order for support entered (whether for the same or a different amount) in a Texas District court?" Article 604 of the Penal Code provide5 for an allowance for support pend- ing the trial of a case for thecrime of wife or child desertion: "The Court during its terms, or Judge thereof in va- cation after the filing of complaint against or after the return of indictment of any person for the crime ' of wife, or of child, or of wife and child desertion shall upon application of the complainant give notice to the defendant of such application and may upon hear- ing thereof enter such temporary orders as may seem just, providing for the support of deserted wives and children or both, pendente lite, and may punish for the violation or refusal to obey such order as for contempt." When a person is charged with violation of Art. 602 or 602-A of the Penal Code, the trial for such offense of desertion will someti'mesnot be held for several months and questions have arisen as to whether the Court in which the criminal case has been filed has jurisdiction, pursuant to . . Miss Edna Cisneros, Page 2 (WW-1023) Art. 604 to enter an order for the support of such children, pendente lite, when there is already an order for support in a sum certain in a Texas District Court where the complainant and the defendant in the criminal case were divorced, or whether an order issued pursuant to Art. 604 will deny the divorce court jurisdiction to enter an order for support pursuant to Article 463ya of Vernon's Civil Statutes, as amended. By enactment of Article 463ga the District Courts, in conjunction with a divorce decree, were authorized to enter an order requiring a parent to make monthly payments for the support of minor children sixteen (16) years flater . changed to eighteen (18) . ._ years by the 1953 amendment) and to enforce obedience of such support orders by civil contempt proceedings. Johns v. Johns, 172 S.W.2d 770 (Civ. App. 1942). Where a support order has been entered in conjunction withya divorce decree and the parent who is ordered thereby to make support payments has defaulted in making such payments, the only remedy available to enforce the order is a civil contempt nroceedinn against the defaulting oarent. there being no other remedy provided by the civil statutes. Bur&G v. Birger, 156 Tex. 584, 298 S.W.2d 119 (1957); McDonald v. Mercantile National Bank, 162 s.w.2a ggl (civ. App. 1942); Youngblood V. Youngblood, 163 S.W.2d 731 (Civ. App. 1942); Crubbs v. Grubbs, 164 S.W.2d 216 (Civ. App. 1942). Any contemnt oroceeding for the enforcement of a support order is ancillarv to the original order and exclusive jurisdiction to-enforce it remains with the Court that entered the original order, one Court being without authority to punish contempt6 of another Court. Ex parte Gonzalez, Ul Tex. 399, 238 S.W. 635 (1922); Putty v. Faulkner, 214 S.W.2d 831 (Civ. App. 1948); Hunt Y. ~oyd, 193 S.W.2d 970 (Civ. App. 1946); Johns v. Johns, supra. - The Courts:are in complete agreement in stating that since a support order is of an interlocutory nature, only the original District Court has jurisdiction to amend, change or modify it. Ex parte Goldsmith, 155 Tex. 605, 290 S.W.2d 502 (1956); Ex parte Roberta, 139 Tex. 644, 165 S.w.2a 83 (1942); Armstrong v. Armstrong, 295 S.W.2d 542 (Civ. App. 1956); Johns v. Johns, supra . Art. 604 was last amended in 1931. Article 4639a was enacted in almost its present form in 1935. Section 2 of said Article, as,,passedin 1935, reads as follows: "Sec. 2. This Act shall be cumulative of all other laws upon the same subject, and is not intended to re- peal any other laws upon the subject of the care or support of such minors." This would tend to indicate that the legislature did not'wish to repeal conflicting laws. However, in 1953, Section 1 of Article 4639a, was amended by Acts 1953, R.S. 53rd Leg. ch. 127, p. 439. Section 2 of the amends.toryAct of 1953 repealed conflicting laws or parts of laws to the exter$ of any conflict. Miss Edna cisneros, Page 3 (w-1023) In 1953 the Legislature showed its intent to repeal all laws in con- flict with Art. 4639a. As a result of the repealing clause in the 1953 amendment of Art. 463ya, Article 604 was repealed in so far as it conflicted with Art. 463ya in granting jurisdiction to enter support orders where a divorce suit is pending and the divorce court has taken jurisdiction and entered an order for support under Art. 463ya. We answer both of your questions in the negative. SUMMARY 1. The County Court does not have jurisdiction to enter an order for support, pendente lite, after the filing of a complaint against a defendant for the crime of child desertion when the complainant and defendant are divorced in a Texas District Court and that Court has entered an order for support. 2. An order of the County Court for support, pendente lite, is not valid and subject to enforcement by con- tempt proceedings in the criminal case when the parties, after the filing of the criminal complaint, have been divorced and an order for support entered (whether for the same or a different amount) in a Texas District Court. Yours very truly, WILL WILSON Attorney General of Texas By&J. &‘,,-&&$q Cecil Cammack, Jr. CC:br Assistant Attorney General APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman John Reeves Sack Price Sam Ray Wilson REVIEWED FOR THE ADORE G-L By: Morgan Nesbitt