Alexander v. Alexander

• Decision Date: 05 December 1963
• Docket Number: No. 9,9
• Citation: 373 S.W.2d 800
• Parties: Ralph C. ALEXANDER, Appellant, v. Iva Maurine ALEXANDER, Appellee.
• Court: Texas Court of Appeals

Page 800

373 S.W.2d 800

Ralph C. ALEXANDER, Appellant, v. Iva Maurine ALEXANDER, Appellee.

No. 9.

Court of Civil Appeals of Texas, Corpus Christi.

Dec. 5, 1963.

Rehearing Denied Jan. 9, 1964.

George Shaffer, of Mahoney, Shaffer & Hatch, Corpus Christi, for appellant.

Royce C. Johnston, Kingsville, for appellee.

GREEN, Chief Justice.

This is an action for divorce, child custody and support, and division of property, real and personal, filed in the district court of Kleberg County, Texas, by appellee Iva Maurine Alexander against appellant Ralph C. Alexander, alleging cruel treatment of such a nature as to render their living together insupportable as ground for divorce.

The trial was to the court without a jury. Only the plaintiff testified as to facts causing the separation. Defendant did not testify or offer any evidence in rebuttal of plaintiff's testimony. Judgment was entered by the court granting the divorce, awarding plaintiff the custody of the only child under eighteen years of age, finding the realty involved to be community property, awarding plaintiff homestead rights in said realty until the youngest became twenty-one years of age, at which time it should belong one-half to each party, awarding the defendant an automobile, and granting an injunction permanently enjoining defendant from causing plaintiff any embarrassment or harassment.

Appellant's appeal is based on the following points: (1) That the evidence is insufficient in law to entitle appellee to a divorce; (2) that the realty involved was appellant's separate property, as shown by the undisputed evidence, and (3) that the trial court was without authority to divest title to one-half interest in appellant's separate realty out of appellant and vest same in appellee.

To these points the appellee replies (1) that the evidence was sufficient to justify the trial court in granting the divorce, and (2) that the final judgment, in so far as it disposed of the property involved, was a judgment by agreement and consent of the parties, and not subject to the attack made on it by appellant.

We shall first discuss appellant's point No. 1. We are of the opinion that the trial court did not, as a matter of law, err in finding that the appellee was entitled to a divorce.

To set out here in detail the testimony on which the trial court based his decision that divorce should be granted would add very little to the store of judicial literature. There are hundreds of opinions of our appellate courts in the Southwestern Reporter on the issues of sufficiency or insufficiency of the evidence to entitle a party to a divorce on the ground of cruel treatment under the statute. As stated by Chief Justice Murray in Guerra v. Guerra, (Tex.Civ.App., 1959) 327 S.W.2d 625, 'Whether or not cruel treatment exists depends largely upon the peculiar facts in each case and it is difficult to lay down a general rule that applies to all cases.'

A summary of the undisputed testimony as shown by the record shows the following facts. The parties had been married thirty-three years. Appellant constantly argued with and nagged appellee and she left him for short intervals four times, but having in mind the welfare of their children, she returned to him after each separation. In the last five years of their marriage during which time he was employed distant from their home, he contributed nothing toward the support of his family, except payments on texes and insurance premiums, and the entire load of supporting herself and the younger children at home was upon her. He became unemployed in July, 1962, and returned to their home. He would not work, though his health was good. He acted indifferently toward her and the family as a whole. He would not take their young son to school on cold mornings, although he had nothing else to do, but insisted that she take him. He refused to help her around the house. He interfered in the peaceful operation of her beauty parlor business. He constantly argued with her. He condemned her unjustly and accused her of infidelity. His actions were such that she could not work while he was around. In view of his treatment of her and of the untrue accusations of infidelity, her health failed, and she became a nervous wreck. After the trial court had issued a restraining order enjoining him from causing her any harassment of embarrassment and from coming around her home or attempting to communicate with her in any way, she recovered her health. She testified that she could not under any circumstances ever live with appellant again as his wife.

We note that the trial judge, after hearing the uncontroverted evidence, not only granted the divorce, but also wrote into the decree a permanent injunction whereby, after finding that appellant had been harassing and abusing appellee and interfering with the peaceable conduct of her business, and unless permanently enjoined would continue to do so, the court permanently enjoined him from 'bothering plaintiff by coming around her residence or about her person or attempting to communicate with her in any way, at any time and place, or causing her any harrassment or embarrassment.'

It is true that for a divorce to be properly granted on the ground of cruelty, under Article 4629(1), acts constituting excesses, outrages or cruel treatment must be established by full, clear and satisfactory evidence. However, the sufficiency and weight of the evidence necessary to meet these requirements must of necessity be left to the sound discretion of the trier of facts, subject, of course, to review by the appellate courts. McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459; Hogue v. Hogue, Tex.Civ.App., 242 S.W.2d 673; Mobley v. Mobley, Tex.Civ.App., 263 S.W.2d 794; Daughtry v. Daughtry, Tex.Civ.App., 312 S.W.2d 957; McGinnes v. McGinnes, Tex.Civ.App., 322 S.W.2d 417; Guerra v. Guerra, Tex.Civ.App., 327 S.W.2d 625; Batte v. Batte, Tex.Civ.App., 349 S.W.2d 112; Armstrong v. Armstrong, Tex.Civ.App., 350 S.W.2d 348.

As stated in McCullough v. McCullough, Sup.Ct., supra, 'It is the settled law of this state that the cruel treatment provided by our statute as a ground for divorce is not confined to physical violence alone, but may consist of a series of studied and deliberate insults and provocations.'

False charges of unchastity or infidelity made by a husband to his wife, or even a single deliberately false accusation, may constitute such cruelty as will entitle the wife to a divorce. Fomby v. Fomby, Tex.Civ.App., 329 S.W.2d 111; 20 Tex.Jur.2d, Divorce and Separation, Sec. 20, p. 368.

From a careful examination of the entire record, we are convinced that the judgment of the trial court granting appellee a divorce is supported by full, clear and satisfactory evidence and should be sustained. Appellant's first point is overruled.

The transcript contains an original judgment approved by the attorneys for both parties and signed by the trial judge on March 29, 1963, showing exception and notice of appeal, a motion of appellee filed June 7, 1963, asking that the court enter a nunc pro tunc judgment in lieu of the first decree, and a nunc pro tunc judgment signed and approved by the same attorneys for both parties and signed by the trial judge on June 11, 1963, also containing exception and notice of appeal. The purpose of said second decree was to include the provision, inadvertently omitted from the order of March 29, 1963, that prior to the entry of the first decree, the parties and their lawyers, in open court, with the approval of the court, announced that all matters involved in this suit with the exception of the granting of the divorce had been agreed upon by the parties and their attorneys with the approval of the court, and that the judgment of the court, in disposing of all such issues except that of the divorce was an agreed judgment. Other than to include the fact of such agreement, the two decrees were identical.

The right of a court of record to enter judgments nunc pro tunc to correct mistakes in the record of their orders and make them conform to the truth is expressly provided by Rules 316 and 317, T.R.C.P. The opposite party must be given reasonable notice of the application, which notice is shown in this instance by the fact that the second decree was signed and approved by appellant's attorney of record.

The court was authorized to enter this nunc pro tunc judgment, and said decree became the judgment of the court in this cause. Tex.Jur.2d Vol. 3, Appeal and Error, Sec. 344, p. 603. Panhandle Constr. Co. v. Lindsey, 123 Tex. 613, 72 S.W.2d 1068; Bolling v. Rodriguez, Tex.Civ.App., 212 S.W.2d 838, writ ref. n. r. e.; Jeffersonian Club v. Waught, Tex.Civ.App., 217 S.W.2d 103; Campbell v. Hart, Tex.Civ.App., 256 S.W.2d 255, writ ref. n. r. e.

Appellant's second point is to the effect that the court erred in finding the realty involved in the suit to be community property when, as he contended, the undisputed evidence showed it to be his separate property. We overrule appellant on this point.

The realty, being three improved lots in Kingsville, Texas, for many years the homestead of these parties, was conveyed to appellant as his separate property in consideration of $1.00 paid from his separate estate and love and affection, by his parents S. Y. and Ellie Alexander, by deed dated January 23, 1934. Appellant on November 28, 1934, executed a deed to Ellie Alexander to this property for a loan of $650.00, though the deed said nothing about such loan. Thereafter, and...