Bond v. Bond
Bond v. Bond
Opinion of the Court
This is a divorce case involving custody of two minor children. From judgment for appellee, plaintiff below, appellant has taken this appeal. We affirm the judgment of the trial court.
Appellant and appellee were married on February 14, 1963, with two children born to the marriage. In November, 1968, appellant left to go to Alaska to seek employment promising to send for the appellee wife and children. Appellant returned to Randall County, Texas, and in May, 1969, the parties orally agreed at counsel’s office upon a divorce including property settlement and child support payments to appel-lee in whom custody of the two children was to remain. Appellant did not return to the attorney’s office to execute the written agreement. Suit was filed by appellee for divorce on June 2, 1969, with service had on appellant in Randall County on the 20th day of June, 1969. The appellant
Appellant’s motion to stay the order of the trial court of July 8 was heretofore submitted in this court and was passed for decision at the hearing on the merits. That motion is now moot and is therefore overruled.
Appellant sets forth in some seven points error by the trial court in failing to sustain appellant’s various motions, objections and exceptions contending lack of jurisdiction to enter orders for the failure of appellee to designate the residence of the two minor children in appellee’s original petition. The appellee’s (plaintiff’s) original petition set out the names, sex and ages of the children born to the marriage but failed to plead the residence. Appellant’s contentions basically are reduced to an interpretation of Art. 4639a, Vernon’s Ann.Civ.St. which reads in part as follows: “Each petition for divorce shall set out the name, age, sex and residence of each child under eighteen (18) years of age born of the marriage sought to be dissolved, if any such child or children there be; and if there be no such child or children, then the petition shall so state. No court having jurisdiction of suits for divorce shall hear and determine any such suit for divorce unless such information is set out in such petition or in each cause of action for divorce. * * * ” Admittedly, the plaintiff’s original petition failed to state the residence of the children. However, the petition alleged the residence of both parents as being Umbarger, Randall County, Texas. As stated in Clare v. Clare, 138 S.W.2d 220, 223 (Tex.Civ.App. n. w. h.), “The child being an ‘infant’ in the popular sense and both of its parents alleged to be residents of Terry County, Texas, we think it will be presumed that the residence and domicile of the child followed that of its father.” We are of the opinion that the residence of the children in this case at the filing of the original petition is presumed to be that of the parents. At any rate, the appellant defendant was served on June 20 and filed no answer until August 6 at which time the appellant contended his residence was Alaska, and raised the issue of appellee plaintiff’s failure to plead residence of the children, and further contending that the residence of the children was in Alaska. Whereupon, appellee filed her amendment to the original petition on August 21 alleging residence of the children in Randall County, and further, residence of the appellant as being unknown. This amendment cured the pleading defect, if any there was, inasmuch as Art. 4639a, supra, sets out the information to be pled before the court shall hear and determine such suit for divorce. As we interpret the statute, the failure to plead the residence of the children born to the marriage would
Appellant next contends error by the trial court in overruling appellant’s motion for continuance. The appellant’s motion was filed on October 14, 1969, the date set for hearing of the divorce, and the motion was made on “information and belief” of appellant’s counsel. The appellant had again failed to appear personally but appeared by and through his attorney. A motion for continuance made by a party’s counsel upon the counsel’s “information and belief” has been held to be insufficient for proper verification. Payne v. Latham, 8 S.W.2d 326 (Tex.Civ.App. wr. dism’d); Bray v. Miller, 397 S.W.2d 103 (Tex.Civ.App. ref’d n. r. e.); 13 T.J.2d, Sec. 122, Pages 50, 51. We find no abuse of discretion by the trial court in overruling appellant’s motion for continuance.
We find no reversible error and the judgment of the trial court is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.