Bomar v. Bomar, 14221

• Decision Date: 21 April 1950
• Docket Number: No. 14221,14221
• Citation: 229 S.W.2d 859
• Parties: BOMAR v. BOMAR.
• Court: Texas Court of Appeals

Page 859

229 S.W.2d 859

BOMAR v. BOMAR.

No. 14221.

Court of Civil Appeals of Texas, Dallas.

April 21, 1950.

Rehearing Denied May 12, 1950.

Ellis P. House and W. H. Hall, both of Dallas, for appellant.

Warren G. Moore, Tyler, and Matthews & Nash, Tom D. Matthews, Dallas, for appellee.

CRAMER, Justice.

This is an appeal from a judgment granting appellee a divorce from appellant, partitioning the community property, awarding custody of their minor daughter to appellee, ordering appellant to pay $50, on each 1st and 15th day of each month until the child is 16 years of age, as child support, attorney's fees of $250, costs, etc. The parties were married in Dallas County, Texas, in February 1943, and it is undisputed that their domicile and residence was in such county until on or about June 1, 1949. At that time they moved with their daughter to Tyler in Smith County, Texas, in order that appellee could be near her mother who was in ill health. On June 20, 1949 appellee filed suit against appellant in Smith County seeking temporary injunctive relief, custody of their minor daughter, for divorce, attorney's fee, etc. After temporary restraining order was granted and appellant appeared therein on the application for temporary injunction, such suit was dismissed and on July 1, 1949 the present suit was filed in Dallas County. After notice and hearing thereon, a temporary injunction (approved as to form by Ellis P. House, as attorney for appellant) was granted; and later, after personal service of citation and the necessary time had expired, no written answer to the merits having been filed, evidence was heard and the present judgment here appealed from was entered.

Such trial on the merits was without a regular setting. Appellant, three days after such judgment, filed motion for a new trial which was regularly set and after evidence was heard thereon such motion for new trial was, by the trial court, overruled. This appeal has been duly perfected from the judgment and order overruling the motion for new trial.

Appellant briefs 17 points of error. By points 1 and 2 he complains of the jurisdiction of the Juvenile Court of Dallas County, and that if such court had jurisdiction, judgment was procured through fraud, in that the testimony of appellee as to her six months residence in Dallas County was not true. By points 7 and 8 he complains of the overruling of his motion for a new trial because appellee had not been a resident of Dallas County for six months next first before the filing of the suit.

The questions raising the jurisdiction of the court must be overruled. Mitchell v. Mitchell, Tex.Civ.App., 199 S.W.2d 699; Kent v. Kent, Tex.Civ.App., 143 S.W.2d 159. The question of the residence of appellee in Dallas County for six months next first before the filing of the suit, although not jurisdictional, is, however, a question of fact which was necessary to be proved on the trial on the merits, and if upon either the trial or the motion for a new trial it appeared as a fact that the necessary six months residence was not present, then it was error for the trial court to overrule the motion. See Divorce-Residence Requirements, etc., 24 Texas Law Review 215. On the trial appellee testified she had been a resident of Dallas County for the necessary six months. Her evidence on the motion for new trial was in substance that the Smith County suit was filed solely for temporary relief in connection with temporary custody of the child and against threatened personal violence to her and the child. The petition in the Smith County suit was introduced in evidence in this case. It alleged that Dorothy Lillian Bomar 'resides in Smith County, Texas' but it nowhere alleges the nature or duration, whether permanent or temporary, of such residence. Appellee testified that she and her husband moved temporarily to Tyler for the purpose of enabling her to be near her invalid mother; that her permanent residence was at all times in Dallas County. Temporary absence from her home under the circumstances did not as a matter of law break her residence in Dallas County. In our opinion the evidence on the question of six months residence in the county was a question of fact, and the court's finding that her permanent residence was in Dallas County for six months before the filing of this suit settled that question against appellant. Fox v. Fox, Tex.Civ.App., 179 S.W. 883. We have reviewed the evidence and finding it sufficient to sustain the finding of the trial court, these points are overruled.

Appellant by his points 6, and 11 to 17 inclusive, attacks the validity of Art. 2338-1, Vernon's Ann.Civ.St., creating the 'Juvenile Court of Dallas County.' He asserts that it is unconstitutional and void, violative of Art. 5, secs. 1 and 8, of the Constitution of Texas, Vernon's Ann.St.; also that the Judge of the 101st District Court, sitting for Judge W. L. Thornton, was not proper and his order and acts void; citing Whitner v. Belknap, 89 Tex. 273, 34 S.W. 594. This case is not in point. The court there created a new district court to be presided over by the regular Judge of the 34th District Court then in existence. The new court was located at Texarkana. Texarkana was not the county seat of Bowie County. The Supreme Court held that a district court must sit at the county seat and struck down such new court at Texarkana as being illegally constituted. Appellant also cites Jordan, County Judge et al. v. Crudgington, County Auditor, 225 S.W.2d 917. The Court of Civil Appeals there struck down a new separate juvenile court for Potter County, but the Supreme Court has granted a writ of error and the...