Crocker v. Crocker

• Decision Date: 15 December 1971
• Docket Number: No. 554,554
• Citation: Crocker v. Crocker, 474 S.W.2d 630 (Tex. Ct. App. 1971)
• Parties: Kerry Andrus CROCKER, Appellant, v. Barbara Buckley CROCKER, Appellee. (14th Dist.)
• Court: Texas Civil Court of Appeals

Page 630

474 S.W.2d 630

Kerry Andrus CROCKER, Appellant, v. Barbara Buckley CROCKER, Appellee.

No. 554.

Court of Civil Appeals of Texas Houston (14th Dist.).

Dec. 15, 1971.

Rehearing Denied Jan. 5, 1972.

Ronald G. Byrnes, Houston, for appellant.

Jim Hamilton; Duvall & Hamilton, Houston, for appellee.

SAM D. JOHNSON, Justice.

Suit for divorce.

Barbara Buckley Crocker filed the instant suit on October 26, 1970, in Harris County to terminate her marriage with Kerry Andrus Crocker. The action was founded upon alleged excesses, cruel treatment and outrages sufficient to render further living together insupportable. The defense lodged to these allegations was a general denial. Following a trial without jury, judgment was entered granting a divorce and Kerry Andrus Crocker has duly appealed from that judgment. It is to be noted that these same persons were previously divorced in May, 1970, and remarried two months later. It was in such previous divorce that the community property of the parties was distributed to each.

In support of his prayer for reversal and dismissal of the cause appellant urges that the evidence to demonstrate (1) cruelty, (2) unkind, harsh or tyrannical treatment and (3) insupportability was factually insufficient, and that the 'trial court's findings as reflected in the decree of divorce are against the great weight and preponderance of the evidence.' These points require a preliminary observation. The language of these contentions clearly is drawn from the earlier divorce statute Vernon's Ann.Tex.Rev.Civ.Stat.Ann. art. 4629, sec. 1 (1960), which has been superseded by V.T.C.A.Tex.Fam.Code Ann., sec. 3.02 (1970). Sec . 3.02 no longer includes the words 'excesses' or 'outrages' but merely states:

'A divorce may be decreed in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.'

Nor does that section list insupportability as a possible basis for divorce. Rather, insupportability is employed in sec. 3.02 as a measure of the character of the cruelty which must be shown. Insupportability as a ground for divorce is found in sec. 3.01, a section not invoked by appellant in this divorce action. Sec. 3.02 speaks only of 'cruel treatment'.

All of appellant's points of error will be considered together inasmuch as they question the factual sufficiency of the evidence in support of the judgment. Sec. 3.64 of the Family Code requires that a divorce decree shall be based upon 'full and satisfactory evidence'. This provision repeats the requirement of the old statute, Tex.Rev.Civ.Stat.Ann. art. 4632 (1960). Cases considering the 'full and satisfactory' standard of evidence have uniformly held that the trial court sitting without a jury is granted broad discretion in determining whether the evidence submitted to demonstrate cruel treatment meets the 'full and satisfactory' test. McGlathery v. McGlathery,429 S.W.2d 187 (Tex.Civ.App.--Amarillo 1968, no writ); McAfee v. McAfee,369 S.W.2d 669 (Tex.Civ.App.--Texarkana 1963, no writ). And where, as here, there is no request for findings of fact by the trial court, an appellate court must view the evidence in the light most favorable to appellee . Haiduk v. Haiduk, 374 S.W.2d 323 (Tex.Civ.App.--San Antonio 1963, writ dism'd).

While it is an appellate court's duty to determine that the trial court's judgment was rendered upon 'full and satisfactory' evidence supporting the plaintiff's allegation, the lower court's determination will not be disturbed unless a clear abuse of discretion is shown. Meyer v. Meyer, 361 S.W.2d 935 (Tex.Civ.App.--Austin 1962, writ dism'd); Caldwell v. Caldwell,423 S .W.2d 140 (Tex.Civ.App.--Waco 1967, no writ). In evaluating the trial court's action the reviewing court should consider that the trial court had the parties before him and thus had the opportunity to observe their demeanor and pass upon their credibility. See Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.--San Antonio 1969, no writ); Shaw v. Shaw, 402 S.W.2d 821 (Tex.Civ.App.--San Antonio 1966, no writ). Blessed with such vantage it has been held that the trial court may decree a divorce even upon nothing more than the contradicted, uncorroborated testimony of one spouse. Duggan v. Duggan,446 S.W.2d 727 (Tex.Civ.App.--Houston (14th Dist.) 1969, no writ).

In the present case, plaintiff Barbara Crocker presented her own testimony and that of two neighbors, Ramona Sayers and Marion Armstrong Maxwell. Plaintiff testified that defendant Kerry Crocker's...