Owens v. Owens

BURKE, P. J.—

Two appeals involving the same action have been combined in this court. The first is an appeal by the defendant husband from an order granting a writ of execution to enforce payment of certain medical and dental expenses incurred on behalf of a minor child in custody of the plaintiff wife. The second is defendant’s appeal from an order granting attorney’s fees and costs to plaintiff to resist defendant’s appeal from the order granting the writ of execution.

A final judgment of divorce of the parties was entered on January 15, 1953. The parties entered into a property settlement agreement prior to instituting the action providing among other things for payment by defendant of $55 per month child support to plaintiff for each of the two minor children and the following:

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[defendant] shall pay all reasonable medical and dental bills of said children as and when due, but as to such bills other than emergency bills he shall be consulted to a choice of physician or dentist before such bills are contracted. ’ ’

[707]

The substance of these provisions was set forth in the interlocutory decree of divorce. Neither the property settlement agreement nor the decree contained any provision for any payments for plaintiff’s support.

One of the two children was married at the time the motion for writ of execution was instituted. However, the other child, Ralph E. Owens, Jr., was at that time 20 years old, unmarried, and the claimed medical and dental expenses were incurred for his benefit.

On June 11, 1956, the order for support was modified by increasing the payments for support of Ralph, Jr., to $75 per month.

Plaintiff’s affidavit in support of her motion for issuance of a writ of execution states that on or about September 5, 1957, it became necessary for personal and economic reasons for her and Ralph, Jr., to take up residence in Houston, Texas.

On April 24, 1961, the court made an order increasing the support of Ralph, Jr., to $100 per month and providing that defendant pay his reasonable and necessary medical and dental expenses. The former requirement that plaintiff notify defendant before contracting any medical or dental bills was expressly terminated.