Curry v. Curry

• Decision Date: 30 November 1938
• Docket Number: No. 8794.,8794.
• Citation: 122 S.W.2d 677
• Parties: CURRY v. CURRY.
• Court: Texas Court of Appeals

Page 677

122 S.W.2d 677

CURRY v. CURRY.

No. 8794.

Court of Civil Appeals of Texas. Austin.

November 30, 1938.

Appeal from One Hundred Twenty-sixth Judicial District Court, Travis County; Roy C. Archer, Judge.

Suit for divorce on ground of cruel treatment by Helen M. Curry against Carl M. Curry. From a judgment granting the wife a divorce and awarding her custody of 12 year old daughter, the husband appeals.

Affirmed.

Robert B. Thrasher, of Austin, for appellant.

Powell, Wirtz, Rauhut & Gideon and Homer Thornberry, all of Austin, for appellee.

McCLENDON, Chief Justice.

This is a divorce suit brought by the wife on the ground of cruel treatment. The judgment, upon a special issue jury verdict, was in favor of the wife decreeing her a divorce and awarding to her the custody of their only child, a daughter, twelve years old. The husband has appealed.

The case is briefed for appellant upon two points, each supported by two propositions.

Point 1 complains of the overruling of a general demurrer to appellee's petition.

First proposition under this point asserts that the petition does not allege a marriage with appellant subsisting at the time the suit was filed. The proposition is without merit. The petition alleges a valid legal marriage May 13, 1923; it relates the birth of their daughter in 1924; it narrates in general terms a course of conduct by appellant toward appellee up to an alleged separation in 1936; it alleges that appellee has at all times while married to appellant been a dutiful wife; that she cannot longer live with him on account of his unbearable conduct; and the prayer is for a divorce and the custody of the child. While there is no specific affirmative averment that the marital relation was still subsisting at the time of the divorce, no other inference could be drawn from the petition. This is especially true in view of the fact that the marital relation could not be legally severed except by death or divorce; and the presumption that when marriage is once established its continuance is presumed until the contrary is shown. Lopez v. Ry., Tex.Civ. App., 222 S.W. 695. The exact point here involved was ruled adversely to appellant's contention in Busby v. Busby, Tex.Civ. App., 64 S.W.2d 392.

Proposition 2 under point 1 is to the effect that the petition is insufficient because it "contains only general charges consisting of conclusions and generalities, unsupported by date, fact or circumstance." Conceding, arguendo, that the proposition correctly analyzes the petition, it is not well taken. The applicable rule was thus announced in McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459, 462: "We hold that a divorce granted by a court of competent jurisdiction on a petition which merely alleges the defendant has been guilty of such excesses, cruel treatment, and outrages against the plaintiff of such a nature as to render their further living together insupportable, is good against a general demurrer. Of course such an allegation, in a way, is the pleading of a conclusion when tested by proper special exception, but, when tested by a general exception, it is a sufficient allegation of a fact, to authorize the district court to hear the evidence, and on which a valid decree of divorce may be awarded."

The petition does, however, allege some specific acts of cruelty, in addition to the general allegations.

Point 2 complains of the refusal of the trial court to direct a verdict in favor of appellant.

Proposition 1 under point 2 asserts that the evidence conclusively shows that appellee resided in Calhoun county for more than six months immediately prior to filing the suit, and that her residence in Travis county during that period was only temporary. R.C.S. Art. 4631, Vernon's Ann. Civ.St. art. 4631.

The suit was filed June 3, 1937. The evidence shows that in September, 1936, after appellee had recovered sufficiently from an operation, she separated from appellant and came to Austin where she was employed in the Democratic State Headquarters and in the Legislature as a stenographer. She returned to Port Lavaca in November to bring her daughter to Austin to live with her. Since then she had continuously lived in Austin until after the suit was filed, employed all the while as stenographer. She never returned to her home with appellant, and the separation was permanent. The evidence conclusively showed an actual, physical residence of appellee in Travis...