Berg v. Berg

• Citation: 115 S.W.2d 1171
• Decision Date: 25 March 1938
• Docket Number: No. 13729.,13729.
• Parties: BERG v. BERG.
• Court: Court of Appeals of Texas

115 S.W.2d 1171

BERG v. BERG.

No. 13729.

Court of Civil Appeals of Texas. Fort Worth.

March 25, 1938.

Rehearing Denied April 29, 1938.

Appeal from District Court, Montague County; Earl P. Hall, Judge.

Suit for divorce by Mattie E. Berg against John W. Berg, wherein defendant filed a cross-action. From a decree for plaintiff, defendant appeals.

Affirmed.

A. B. Cates, of Decatur, for appellant.

Donald & Donald, of Bowie, for appellee.

BROWN, Justice.

Appellee brought suit against appellant for a decree of divorcement, and a settlement of the property rights between the parties. The cause was tried to a jury, and only the issues touching the conduct of the respective parties were submitted. Appellant filed a cross-action. On the verdict of the jury, the trial court rendered judgment, dissolving the bonds of matrimony between the parties, and entering a decree settling the property rights.

In this decree the court awarded to appellee the use of the homestead and its contents, so long as she lived and remained unmarried. It appears that appellant owned a farm, which was his separate estate, and that he was receiving a pension of about $59.50 per month, by reason of his long service with and his retirement from the service of a certain railroad company. In the decree the trial court awarded appellee $17.50 per month out of such pension during her life, and while she remained a widow. An attorney's fee of $100 was also awarded appellee, and a lien was fixed by the trial court upon appellant's separate estate, to secure the payment of the monthly allowance set by the court.

John W. Berg, the husband, has appealed, and we find twenty-five assignments of error in his brief. We also find that appellant's counsel, in presenting the appeal, says that in the interest of brevity and to avoid repetition, and because said assignments are so closely related, that the appellant has grouped the assignments in his brief, so that he undertakes to show that it was error on the part of the trial court (1) to grant a divorce to the plaintiff below as against the defendant's denial and cross-action, on the unsupported and uncorroborated testimony of the plaintiff, urging that such testimony is not full and satisfactory as required by the statute; (2) to deny partition of the community homestead property and to award possession and use of same to the plaintiff, because there was no child born to the union and no constituent of a family remaining after the divorce decree; (3) to hold that the plaintiff was entitled to a community interest in the pension drawn by the defendant, under the provisions of the Railroad Retirement Act, 45 U.S.C.A. § 228a et seq., and to award her a lifetime support of $17.50 per month, and to impose a lien on defendant's property, to secure the payment of such support; and (4) to award plaintiff an attorney's fee in the sum of $100.

We find no merit in the assignments of error. In the first place, taking up the first group, as presented by appellant, if the testimony of the appellee had been uncorroborated and denied in toto by appellant, if the jury believed appellee, as they evidently did, as reflected by their verdict, and if in the wisdom of the trial court this evidence appeared to be full and satisfactory to the trial court, this court would not be warranted in disturbing the verdict. But the record discloses that appellee's testimony was corroborated by letters written by appellant to a third party, in which letters the appellant imputed to appellee unchastity and a lack of fidelity.

As to the second group of assignments, article 4638, Revised Civil Statutes, provides specifically that the trial court, in pronouncing a decree of divorce, shall enter decree and order a division of the estate of the parties in such...