Blackburn v. Blackburn

• Decision Date: 23 March 1942
• Docket Number: No. 5406.,5406.
• Citation: 163 S.W.2d 251
• Parties: BLACKBURN v. BLACKBURN.
• Court: Texas Court of Appeals

163 S.W.2d 251

BLACKBURN v. BLACKBURN.

No. 5406.

Court of Civil Appeals of Texas. Amarillo.

March 23, 1942.

Rehearing Denied June 15, 1942.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Potter County; E. C. Nelson, Jr., Judge.

Suit for divorce and for division of property by Henry Walter Blackburn against Clara A. Blackburn. From the judgment, the defendant appeals.

Affirmed.

H. H. Cooper, of Amarillo, for appellant.

Clayton & Bralley, of Amarillo, for appellee.

FOLLEY, Justice.

This suit was filed by the appellee, Henry Walter Blackburn, against the appellant, Clara A. Blackburn, for a divorce and division of the property of the parties. The property is of considerable proportions and consists of 408 shares of stock of Blackburn Bros. Inc. in Amarillo, and numerous parcels of real estate. The grounds relied upon for the divorce were based upon Section 1 of Article 4629, Vernon's Ann.Civ.St., relative to excesses, cruel treatment and outrages upon the part of the appellant.

Upon special issues submitted which are material here, the jury found that the appellant had been guilty of excesses, cruel treatment and outrages of such a nature as to render the further living together of the parties insupportable; that certain separate property of the appellee had been used in acquiring property now owned by the parties; fixed the value of the respective items of property composing the community estate; and that $1,250 was a reasonable attorney's fee for the attorney representing the appellant. The court rendered judgment dissolving the marital relation, dividing and partitioning the property and allowing the appellant $1,250 attorney's fees.

The appellant excepted to the petition of the appellee wherein the appellee alleged that appellant repeatedly refused to visit and associate with the appellee's brothers and their respective families who lived in Amarillo where the appellee and appellant reside, and that the appellant refused to accompany the appellee on trips to Mineral Wells, Texas, and other places, it being urged by the appellant that such allegations constitute no grounds for divorce. The appellant further excepted to the petition because, she asserts, the appellee failed to allege the date when the parties ceased living together as husband and wife, and that appellee alleged continuous nagging by the appellant and the making of false accusations of infidelity against him when no specific language or acts were alleged. The court overruled these exceptions and his action is assigned as error.

The appellee alleged that prior to February 1, 1930, and particularly during the years 1928 and 1929, the appellant commenced a course of studied and deliberate conduct towards the appellee, constituting excesses, outrages and cruel treatment of such a nature as to render their further living together insupportable; that appellant, without cause, refused to take any part in social life or social activities with the appellee and at all times refused to accompany him to social occasions; that she repeatedly and continuously refused to associate with their mutual friends and acquaintances and refused to visit and associate with appellee's brothers and their respective families in Amarillo; that appellant refused to go on vacations with the appellee; that appellant was constantly in an ill humor and went for days at a time without communicating with or speaking to the appellee in their home or elsewhere; that repeatedly during the last two years when the appellee and appellant occupied the same dwelling house, the appellant was constantly in an ill humor and refused to converse with the appellee, all of which acts and conduct of the appellant caused appellee much mental pain and embarrassment, rendering their married life unbearable and creating an unhappy atmosphere in their home, which condition became more aggravated from time to time, with the result that on or about February 1, 1930, the appellant, of her own accord, fixed up a room in their dwelling house for the appellee alone to occupy; that at all times thereafter appellant occupied a separate room from that prepared by the appellant for appellee; that by mutual understanding of the parties they had continuously lived separate and apart without cohabitation since February 1, 1930; that the acts and conduct of the appellant continued without intermission and became more aggravated during the last two years appellee occupied a room in the same house with the appellant, all of which rendered appellee's life miserable with the result that appellee left their dwelling house since which time they have not occupied the same premises; and that the continuous ill humor and mental attitude of the appellant constituted cruel and inhuman treatment of such nature as to render their further living together as husband and wife insupportable which, together with appellant's refusal to cohabit with appellee, made it necessary for them to separate.

In our opinion, the so-called special exceptions of the appellant amounted in effect to a general demurrer. Although the respective acts of ill conduct of the appellant were not set forth by date and instance, the appellee did plead that prior to February 1, 1930, and particularly during the years 1928 and 1929, the continuous course of alleged conduct occurred. The petition thus charged a continued course of wrongs extending over a long period of time which was followed by specific acts of cruelty. A petition which charges wrongs, excesses and cruelties alleged to have occurred between specified months has been held to fulfill the requirements of the law without stating the place where the acts were committed or the particular day of their occurrence. Jones v. Jones, 60 Tex. 451. Moreover, most all of the allegations to which the exceptions were addressed concern transactions between the parties alone in domestic privacy. Testimony was offered by both parties upon the issues thus presented. The appellant did not claim surprise nor ask for time to procure other testimony. No injury was shown by her in this respect.

In McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459, the Commission of Appeals, speaking through Justice Critz, held that the cruel treatment provided by our statute for divorce is not confined to physical violence alone, but may consist of a series of studied and deliberate insults and provocations. It was further held that the question to be decided is whether the course of treatment constituted such excesses, cruel treatment or outrages as to render further living together by the parties insupportable, and that it was the duty of the trial court to weigh the course of conduct in the light of all the facts and circumstances, which includes the character and refinement of the parties. The further observation was made that what might be cruel and inhuman treatment as to one couple might not be to another of different circumstances in life. In this connection, we think the record warrants the conclusion that both of the parties to this suit possessed such unusual refinement that physical violence would not have been resorted to by either of them. It is apparent from the above allegations that this suit was based upon charges of long and continuous cruel treatment in various forms over a period of years which resulted in rendering further living together of the parties insupportable. Under such circumstances the "cause of action asserted must be measured by the force and effect of all the several matters alleged when considered in the aggregate and in their natural sequence." Arendale v. Arendale, Tex.Civ.App., 22 S.W.2d 1080, 1081....