Green v. Green

282 S.W.2d 254, 1955 Tex. App. LEXIS 2036

Opinion

NORVELL, Justice.

The determination of this appeal is controlled by our decision in Goodman v. Goodman, Tex.Civ.App., 236 S.W.2d 641. Upon motion being filed to modify the child custody provisions of a divorce decree rendered on May 15, 1953, the trial judge ordered a notice issued to appellant commanding her to appear and answer the application on May 6, 1955, which was seven days after the date of the filing of the motion. Appellant on said date pointed out that no citation had been served upon her. Despite this protest, the court proceeded with the hearing and rendered judgment effecting certain permanent changes in the custody provisions of the divorce decree.

In Goodman v. Goodman, supra, we held that an application to permanently change or abrogate the provisions of a child custody decree constituted the institution of a new suit, and that in the absence of waiver a permanent order modifying such decree could not properly be entered without service of citation.

The order appealed from is reversed and the cause remanded.