Caldwell v. Caldwell, 5583.
| Decision Date | 13 December 1943 |
| Docket Number | No. 5583.,5583. |
| Parties | CALDWELL v. CALDWELL. |
| Court | Texas Court of Appeals |
Appeal from District Court, Potter County; Henry S. Bishop, Judge.
Suit for divorce by L. C. Caldwell against Elizabeth Caldwell. From a judgment denying a divorce, plaintiff appeals.
Judgment affirmed.
J. W. Culwell, of Amarillo, for appellant.
Appellant, on April 23, 1942, filed suit against appellee for divorce on the grounds of cruel treatment, alleging that he and appellee were married on or about April 21, 1940, and lived together for only three weeks when, an account of the cruel and harsh treatment and improper conduct on the part of the appellee, such as drinking, going to "honky-tonks," and association with questionable people, appellant was forced and compelled to leave the appellee with the intention of never living with her, as her conduct had rendered their further living together insupportable and impossible. Appellant further alleged that appellee's conduct was continuous and constant, and made for the specific purpose of annoying and vexing appellant, and did annoy and vex him to the extent that he could not apply himself to his job and caused him worry and affected his entire being.
Appellee executed sufficient waiver of service and in such waiver entered her general appearance in the cause. She made no further appearance, either by pleading or in person, and presented no evidence.
On the trial of the case to the court without a jury, judgment was entered denying the appellant a decree of divorce, said judgment reciting that the trial judge found that the truth of the material allegations of the petition were not established by the evidence. Appellant excepted, gave notice of appeal, and requested findings of fact and conclusions of law to be filed by the trial court. The essential findings of fact, as filed by the trial court in compliance with such request, were that appellant and appellee were married sometime in the year 1940, the exact or nearer statement of the date not having been made by any witness; that in about three weeks they separated from each other; that appellant was a taxicab driver in the city of Amarillo; that if appellee, after her marriage to appellant, was addicted to the excessive use of intoxicating liquor, as testified by the appellant, she was likewise addicted to such use of liquor during the prenuptial period when appellant knew and courted her; that appellant knew the kind of woman she was when he married her and knew that she drank intoxicating liquor; that he was not surprised by her continuation in such indulgences; that she did not conceal from him such fact of her habits before her marriage; that she made no promise before or on such marriage to change such habits; and that he was in no wise imposed upon by her to his disadvantage. The court further found as a fact that appellant, during the brief three weeks he lived with appellee, did not have sufficient opportunity or time to test and reasonably decide from the character and habits of the appellee whether she was suitable for his wife, regardless of whether or not he had known anything about her character and habits before their marriage. The court further found that appellee did not do enough within said three weeks, nor since, to amount to such cruelty to appellant as to warrant the court to award him a decree of divorce.
The court concluded, as a matter of law, that "the evidence is not full and satisfactory, to convince the court, upon a fair appraisal of it, that the material allegations in plaintiff's petition are true, and that under the law of this state, upon the subject of divorce, the evidence is insufficient to warrant a decree for divorce upon the grounds alleged by plaintiff."
Appellant contends that the evidence made out a case in which the trial court was not justified in refusing him a decree of divorce, and complains that the record does not substantiate the findings of fact on which the conclusion of law is predicated.
Article 4632, R.C.S. 1925, governing procedure in divorce cases, provides: ...
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