(dissenting).
I respectfully dissent and would grant the motion for rehearing and reverse and remand.
Our courts are charged with the responsibility of the welfare of minor children in all divorce cases. Parents ofttimes enter into settlement contracts upon divorce that are entered into when one or both parents are under extreme emotional stress and strain. The father sometimes agrees contractually to monthly child support payments and he later finds he is unable to pay. No one would or could quarrel with a court that reduces, by order, an excessive support payment that a parent is financially unable to pay. Conversely, the court has a right, and a duty, to modify that order of support upwards when a father becomes financially able to maintain his own children at a higher standard than he might have agreed to at the time of the divorce. Art. 4639a, R.C.S. was enacted to give the court the necessary authority and power to guard carefully the best interest and welfare of minor children. Judge Dixon in *203Murray v. Murray, 350 S.W.2d 593 (Tex.Civ.App. n. w. h.) states:
“The fact that the parties had entered into a contract in regard to child support and that the Juvenile Court recognized the contract, did not deprive the Court of its statutory authority under Art. 4639a to enter an appropriate child support order or later to change its order. Brady v. Hyman, Tex.Civ.App., 230 S.W.2d 342; Mobley v. Mobley, Tex.Civ. App., 221 S.W.2d 565; Townsend v. Townsend, Tex.Civ.App., 115 S.W.2d 769; Ex parte Birkhead, 127 Tex. 556, 95 S.W.2d 953.”
The Dallas appellate court further quotes from 21 T.J.2d 45-47 as follows:
“ ‘Under the statute a divorce decree providing for child support payments in accordance with an agreement of the parties may be modified by a subsequent order, and if modified may be enforced by contempt proceedings only as to the modified amount. However, the modification does not affect liability for the contractual amount, and the obligee is entitled to recover delinquent payments based on this contract by the ordinary processes of law for the enforcement of contractual obligations.’ ”
The majority opinion quotes the Supreme Court in Francis v. Francis, 412 S.W.2d 29, as follows:
“Amicable settlement by the parties of their property rights should be encouraged, not discouraged. The agreement will then have whatever legal force the law of contracts will give to it.”
That case, however, is not in point here. There were no child support payments involved in the Francis case, merely a property settlement agreement that the plaintiff was attempting to have the court modify. The court was not called upon to determine the question in this case, i. e., does the district court have the authority under Art. 4639a to order the child support reduced or increased, even though the parties have agreed by contract upon divorce to a certain amount?
Clearly, the court has the authority to modify child support payments under Art. 4639a any time that evidence is produced showing that the party paying the support is financially able to pay a higher amount, or is financially unable to pay the amount ordered by prior judgment. See recent decisions Vol. 3, Baylor Law Rev., p. 589.
Whether or not Mr. Duke is financially able to pay a greater amount of support, or a lesser amount, was not decided by the trial court and therefore is not at issue here. Obviously, the trial court was of the opinion that the court could not go into the question of raising or lowering the child support payments. A part of the trial court’s order read as follows: “ * * * and that said contractual provisions of the settlement decree and agreed judgment are not subject to modification herein * * I am of the opinion that the trial court should have heard evidence as to the ability of the supporting parent to pay and had the authority under Art. 4639a to order either a greater amount of child support or a lesser amount based upon the evidence.
I would grant the motion for rehearing and reverse and remand.