Longoria v. Longoria

327 S.W.2d 453 (1959)

Oscar G. LONGORIA, Petitioner, v. Aurora Villarreal LONGORIA, Respondent.

No. A-7391.

Supreme Court of Texas.

July 22, 1959.

Rehearing Denied October 7, 1959.

Lloyd & Lloyd, Alice, for petitioner.

Perkins, Floyd & Davis, Kenneth Oden, Alice, for respondent.

PER CURIAM.

Petitioner asserts that this Court has jurisdiction under subdivisions 2 and 3 of Article 1728, Vernon's Ann.Tex.Civ. Stats. As this is a divorce case, jurisdiction cannot be based upon subdivision 3 upon the assertion that the construction or validity of statutes necessary to a determination of the case is involved, State v. Wynn, Tex., 301 S.W.2d 76, but must be predicated upon subdivision 2 relating to a conflict of decisions. Cone v. Cone, 153 Tex. 149, 266 S.W.2d 860.

Complaint is made of the Court of Civil Appeals' action in entering an order requiring petitioner to pay to respondent certain money for the support of their minor children, 324 S.W.2d 244, but our attention is not directed to any decision of this Court or of a Court of Civil Appeals which conflicts with the decision of the Court of Civil Appeals in the present case. The rule as to conflicts was stated in Garitty v. Rainey, 112 Tex. 369, 247 S.W. 825 and recently reaffirmed in International Harvester Co. v. Stedman, Tex.1959, 324 S.W.2d 543.

The support orders complained of as well as custody provisions contained in the judgment or decree grew out of and were a part of the controversy which culminated in a decree which divorced the parties and settled their respective rights, including the custody of their children. We are here concerned with a "case of divorce" within the meaning of the Supreme Court jurisdictional *454 statutes, Kellett v. Kellett, 94 Tex. 206, 59 S.W. 809; Burguieres v. Farrell, 126 Tex. 209, 87 S.W.2d 463; Cone v. Cone, 153 Tex. 149, 266 S.W.2d 860, and not with an independent suit having for its purpose the modification of a custody order because of a change in conditions arising subsequent to the divorce decree. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Green v. Spell, Tex.Civ.App., 191 S.W.2d 92, wr. ref., 144 Tex. 535, 192 S.W.2d 260; Goodman v. Goodman, Tex. Civ.App., 236 S.W.2d 641, no writ history. With reference to the modification of support orders, see Article 4639a, § 1, Vernon's Ann.Tex.Stats.; Williams v. Williams, Tex. Civ.App., 183 S.W.2d 260, no writ history; Yeagle v. Bull, Tex.Civ.App., 235 S.W.2d 226, no writ history.

The application for writ of error is dismissed for want of jurisdiction.