Palmer v. Palmer , 1962 Tex. App. LEXIS 2008 ( 1962 )

MURRAY, Chief TuStifcfc'.

Chi August IS, 1961, in'Cause No. 72655 oti'' the ' docket' of the District Court of ' Niieces County, Texas,' William Harrison Palmer Was granted a divorce from Frances Joan Palmer, based on desertioii for more than seven years, and ordered to pay her, for their two minor children, William Har-risqp. Palmer,-Jr., a boy nine-years:.-of age, and-Frances Joan-¡Palmer, .a.-girl-:-sever»'¡ years pf age, the-sum of $58.55 each, or-, a. total of. $117.10, per month for the two-¡ children.

On January 17, 1962, some'five''montlís' later,.William Plarr.ison Palmer filed a motion- in the same: cause; -seeking -a reduction' in-, his payment .for child support; On-Feb-rüary. 12, 1962,- after-.- a hearing, the trial-court entered an order reducing his payment to $77.10 for the support of his two minor children. From this order his former wife, Frances Joan Palmer,( has prosecuted this appeal.

The evidence shows that immediately aft-er William Harrison Palmer was divorced he married a second wife who had three small children, and is now pregnant, is under a doctor’s care, and soon will have a fourth child, but the parties stipulated that this1 second marriage was not to be taken into consideration in determining whether or not the child support for Palmer’s two children by his first marriage should be reduced,'' and this stipulation seems to bé in keeping with the law. Brito v. Brito, Tex.Civ.App., 346 S.W.2d 133.

Appellee testified that he is a First Class Petty Officer, E6, and that his pay grade goes up through E9. He is apparently making the same salary now that he was making at the time of his divorce. His only complaint is that his take home pay is less. The Government lately discovered that he had been overpaid the sum of $292.00, and is requiring him to pay this back at the rate of $22.00 per month. This amount is taken out of his pay each month. He is being transferred from land service to sea service. He has heretofore been permitted to draw $31.00 per month commissary rations. While he is on sea duty he will receive his meals on the ship in lieu of this $31.00. Thus, he says, his take home pay has been reduced $53.00 per month. On this basis the trial court reduced his payment for child support from $117.10 to $77.10 per month, a reduction of $40.00. Appellee admits that when he is on sea duty he will receive a pay increase of $22.00 per month, but this increase will not start for a period of four months, as he must go to a school for four months before he actually goes on sea duty. After about thirteen months he will have repaid his debt of $292.00, then the $22.00 will no longer be taken from his pay each month.

The evidence did not justify the reduction in the amount of child support, and the court erred in reducing the same from $117.10 to $77.10 per month.

The judgment is reversed and the cause remanded.