Bell v. Bell, 1963.
| Decision Date | 22 December 1939 |
| Docket Number | No. 1963.,1963. |
| Parties | BELL v. BELL. |
| Court | Texas Court of Appeals |
Appeal from District Court, Comanche County; R. B. Cross, Judge.
Suit for divorce and for interest in community property by Mrs. Pearl Bell against R. W. Bell. From an adverse judgment, the defendant appeals.
Judgment affirmed.
Fred O. Jaye and Frederick G. Harmon, both of De Leon, for appellant.
Oxford & McMillan, of Stephenville, for appellee.
Mrs. Pearl Bell instituted this suit for divorce and her interest in community property against her husband, R. W. Bell. The grounds for divorce were alleged to be acts of personal violence accompanied by threats and abusive epithets inflicted upon her. The defendant answered by general demurrer, general denial and specially denied the allegations relating to inhabitancy in the state and residence in the county required by Art. 4631, R.S.1925, Vernon's Ann.Civ.St. art. 4631.
The trial was before the court without a jury and at the conclusion thereof a decree was entered granting plaintiff a divorce, together with attorney's fee of $50 and one half of the community property amounting to $150. The defendant appeals. The parties will be referred to as in the trial court.
There are three assignments of error and they will be disposed of in their order.
The first one is to the effect that the decree of divorce was erroneously entered on "uncontradicted" testimony showing "the plaintiff was not possessed with the qualifications of a bona fide inhabitant of the state of Texas for one year and of the county for six months necessary to authorize the bringing of an action for divorce and the awarding of a judgment thereon."
If the plaintiff's testimony is to be believed there is no question about her presence and residence in the county during the relevant six months' period. If there is any doubt concerning either jurisdictional fact it relates more to the one year's inhabitancy of the state. This seems to have been the second time these parties entered into the matrimonial relation. This last marriage took place September 23, 1937 at Winters, Texas. Apparently they resided there for a while and at Snyder, Texas, then went on a trip to south Texas. On this trip they seemed to have disagreed at Beeville, Texas, where they separated about January 5, 1938. Having no home and the burden of caring for a small child by a former marriage, the plaintiff stayed for a short while with her mother at Mineral Wells and then went to New Mexico where a sister resided. She had some assurance of temporary employment in a beauty shop at that place which furnished some opportunity for schooling in that type of work. Being in straitened financial circumstances and her health impaired she went there for the purpose of bettering her condition in each respect, so she testifies. She further testified that she had lived in Texas practically all her life. She denied that she at any time had entertained the idea of establishing actual residence and inhabitancy elsewhere. That her testimony covered these points in a manner favorable to the plaintiff is clearly reflected by the record and conceded by the defendant. We find in his brief the following: "We think this witness's testimony taken as a whole was a fabrication with a view to establishing or attempting to establish her qualifications relative to her inhabitance of the state and residence in the county for the purpose of obtaining a decree of divorce." If this is a correct interpretation of the record the evidence certainly raised an issue of fact which the trial court has disposed of. That court had the power and duty to pass upon the credibility of witnesses and the weight to be given to testimony.
From the latter part of January to about the first of May, or soon thereafter, plaintiff was with her sister in New Mexico under the circumstances above detailed. That such was but a temporary visit under adverse circumstances and without any idea of establishing inhabitancy in that state is evidently the conclusion of the trial court and the finding that she did not by her visit there lose her residence in Texas is supported by the testimony. Such conclusion is warranted by good authority. Fox v. Fox, Tex.Civ. App., 179 S.W. 883; Snyder v. Snyder, Tex.Civ.App., 279 S.W. 897; Snead v. Snead, Tex.Civ.App., 27 S.W.2d 268.
Doubtless this court is not necessarily bound by the trial court's conclusions on such matters of evidence but "in passing on the sufficiency of the evidence the appellate court should give much difference to the conclusions of the trial court of jury as respects the credibility of witnesses, since they have an opportunity to observe the general manner and deportment of the witnesses during the trial." 15 Tex.Jur. p. 556, sec. 89, citing many authorities in foot note.
The second assignment is that the court erred in...
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