Clay v. Clay

• Decision Date: 24 March 1977
• Docket Number: No. 16806,16806
• Parties: Henry J. CLAY, Appellant, v. Kathlyn G. CLAY, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 730

550 S.W.2d 730

Henry J. CLAY, Appellant, v. Kathlyn G. CLAY, Appellee.

No. 16806.

Court of Civil Appeals of Texas, Houston (1st Dist.)

March 24, 1977.

Rehearing Denied April 21, 1977 With Opinion.

Second motion May 19, 1977.

Karl E. Kraft, Houston, for appellant.

Minter & Mahon, Gary D. Aguren, Houston, for appellee.

COLEMAN, Chief Justice.

This is an appeal from a judgment of the trial court dissolving the bonds of matrimony, providing for a property settlement, continuing in effect a temporary support order pending appeal, and assessing court costs against the appellant. The case was tried to a jury, but the appellant elected not to file a motion for a new trial.

Appellant contends that his points on appeal are properly based on the action of the trial court in denying his motion for judgment on the verdict. Both parties filed motions for judgment. The trial court entered no order reflecting her action on either of the motions.

The parties to this appeal were married on July 12, 1958. There are two minor children. Kathlyn Clay filed a petition for divorce on November 22, 1974, and Henry Clay answered with a general denial and a cross-action. Both parties went to trial pleading as grounds for divorce the no-fault provision of the Family Code, section 3.01, and section 3.02, the cruel treatment provision.

In response to special issues the jury made the following findings:

1. The marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.

2. Acts and conduct of Kathlyn Clay towards Henry Clay constituted cruel treatment of a nature that renders their further living together as husband and wife insupportable.

3. The best interests of the children will be served by placing custody in Kathlyn Clay.

4. $1,050.00 per month is the necessary amount for the support and maintenance of the children.

Other issues were submitted and answered relating to the fair market value of certain property and monies on deposit.

The jury was unable to answer the special issues relating to whether Henry Clay was guilty of cruel treatment towards Kathlyn Clay and whether Mrs. Clay acted in good faith and with probable cause in filing and prosecuting the suit or whether it was necessary for her to file and maintain the suit. The parties agreed to receive the partial verdict, and Mrs. Clay waived her right to have the issues answered.

Appellant's first three points relate to the action of the trial court in failing to enter a judgment granting a divorce to appellant on the cruel treatment finding. Appellant's motion for judgment states no reasons why the judgment presented should have been entered in preference to the judgment prepared by the trial court. The judgment signed by the trial court purported to be a judgment on the jury's verdict. The jury findings were recited. Instead of awarding a divorce to the appellant, the trial court merely dissolved the bonds of matrimony.

The guidelines developed by the Supreme Court of Texas in Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960), provide a basis for the solution of the problem in this case. The court held that Rule 324, Texas Rules of Civil Procedure, did not eliminate altogether the necessity for filing a motion for new trial as a prerequisite to appeal. With specific reference to a motion for judgment non obstante veredicto the court recognized that a party could forego the filing of a motion for new trial and predicate his points of error on appeal on the matters included in such motion. However, the court held that in such event the appellant could complain on appeal only on the denial of the motion non obstante veredicto. In Wagner v. Foster, supra, the Supreme Court also held that assignments of error in a motion for new trial which do no more than adopt from or refer in general terms to other motions do not "specify", "distinctly set forth", or "clearly identify" a ground of error, and form no proper basis for a point of error on appeal.

In Miller v. Miller, 274 S.W.2d 762 (Tex.Civ.App. San Antonio 1954, error ref'd), the court said:

"Appellant filed two motions, one a motion for an instructed verdict and the other, which he termed plaintiff's motion to enter judgment. Both motions were overruled. If this latter motion could be construed as a motion for judgment notwithstanding the verdict, or a motion for judgment in plaintiff's favor on the verdict, then appellant would be entitled to complain on this appeal of its being overruled, and that would be the only matter of which he could complain in the absence of a motion for a new trial. . . ."

Appellant's assignment that the trial court erred in overruling his motion for judgment does not "specify", or "distinctly set forth", or "clearly identify" a ground of error. The point is much too general to be the basis of an assignment of error in a motion for new trial. Rules 320, 321, 322 and 374, Texas Rules of Civil Procedure. It is likewise too general for consideration by this court. Wagner v. Foster, supra.

Where points on appeal are predicated on the denial of a motion for judgment the motion must specify the matters to be included in the court's judgment, and the reason therefor. Merely attaching a form of judgment to a request for entry of judgment does not bring to the attention of the The final paragraph of appellant's first amended motion for entry of judgment reads:

trial court anything except the fact that the person presenting the motion is requesting the trial court to enter a judgment in his favor. No specific "matters" are included in such a motion. Abbott v. Earl Hayes Chevrolet Co.,384 S.W.2d 782 (Tex.Civ.App. Tyler 1964, no writ history).

"WHEREFORE, premises considered, and without waiver of his right to seek review of the rulings specified on the signature page hereof, Respondent respectfully moves the Court to enter the proposed Judgment annexed hereto."

The paragraph to which reference was made reads:

"To which rulings and action of the Court (a) in so dividing the estate of the parties, (b) in requiring payment of $200,000.00 by Respondent to Petitioner as order in subparagraphs "A" and "B" above, (c) in assessing one-half of the auditor's fee against Respondent, and (d) in assessing all court costs against Respondent, and for the purpose of obtaining review only of such specified rulings and action of the Court, Respondent in open Court excepted and gave notice of appeal to the Court of Civil Appeals sitting in Houston, Texas."

While the action of appellant in referring to another instrument to set forth the matters of which he complains in his motion for judgment is not approved as a substitute for a motion for new trial, the points relate to matters which come within the discretionary power of the trial judge in a divorce proceeding and are not matters which are submitted to the jury. These matters were presented to this court by points in the appellant's brief and will be considered.

The statement of facts reflects that the appellant strongly urged on the trial court his contention that the jury's answer to the issue on cruelty required that the trial court enter a judgment granting a divorce to appellant. While it is our opinion that this point is not properly presented in the motion for judgment and fails to present a basis for a point on appeal, we are further of the opinion that the point does not present reversible error. See Moreno v. Jenkins, 436 S.W.2d 620 (Tex.Civ.App. Austin 1968, writ ref'd n.r.e.).

In Cusack v. Cusack, 491 S.W.2d 714 (Tex.Civ.App. Corpus Christi 1973, writ dism'd), the court stated:

"* * * When insupportability is relied on as a ground for divorce by the complaining spouse, if that ground is established by evidence, a divorce must be granted the complaining party, without regard as to whether either, both or neither of the parties are responsible for or caused the insupportability. Stecklein v. Stecklein, 466 S.W.2d 421 (Tex.Civ.App. San Antonio 1971, no writ history). It is not incumbent upon the plaintiff who brings the divorce action upon the ground of insupportability to show any misconduct on the part of the defendant, but it is only incumbent upon that spouse to establish by the evidence that a state of insupportability exists regardless of whether it is anyone's or no one's fault. . . ."

Section 3.01, Family Code, provides:

"On the petition of either party to a marriage, a divorce may be decreed without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation."

This section authorizes the trial court to decree a divorce. It does not require the trial court to grant a divorce to either party to the suit. The issue to be determined by the court or the jury as fact finders is whether the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation. The jury, or the trial court when acting as a fact finder, is not concerned with the fault of the parties. While a divorce In the case under consideration the trial court was authorized by the verdict of the jury to grant a divorce as authorized by Section 3.01, supra. She was not required to grant a divorce to the appellant based on the jury's finding of cruel treatment, although she could have done so in her discretion. The trial court was authorized to consider the finding on cruel treatment in connection with her duty to divide "the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage" as required by Section 3.63 of the Family Code.

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