Cusack v. Cusack

• Citation: 491 S.W.2d 714
• Decision Date: 28 February 1973
• Docket Number: No. 749,749
• Parties: Nancy Ann CUSACK, Appellant, v. William L. CUSACK, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 714

491 S.W.2d 714

Nancy Ann CUSACK, Appellant, v. William L. CUSACK, Appellee.

No. 749.

Court of Civil Appeals of Texas,

Corpus Christi.

Feb. 28, 1973.

Rehearing Denied March 22, 1973.

Crain, Crain & Sheppard, Frank B. Sheppard, Cuero, for appellant.

Hartman & Lapham, Wayne Hertman, Victoria, for appellee.

OPINION

BISSETT, Justice.

This is a divorce case. Whilliam L. Cusack sued Nancy Ann Cusack for divorce on the sole ground of insupportability. After a jury trial, judgment was rendered granting a divorce to the plaintiff, awarding custody of the minor children to defendant with plaintiff having reasonable visitation rights, providing for support of the minor children by plaintiff, dividing the community property between the parties, and allowing attorney's fees to the defendant. Nancy Ann Cusack has appealed. We affirm.

In addition to denying the allegations contained in appellee's petition, the appellant alleged that appellee had committed adultery, and was seeking the divorce, not because the marriage had become insupportable because of discord and conflict of personalities, but in order to 'enable himself to continue such affair with impunity'. Appellee filed special exceptions to appellant's pleadings, wherein he averred that appellant attempted to plead adultery as a bar to appellee's action for divorce, and that the allegations of adultery were irrelevant and immaterial to any issue in the divorce action that was brought by him. The special exceptions were sustained. The trial court further sustained appellee's motions in limine whereby appellant was precluded from offering any evidence tending to show that appellee had committed adultery.

Appellant's first three points of error complain of the aforesaid rulings by the trial judge. Appellant contends, in part, that, having plead appellee's adultery as an independent bar to the suit for divorce, she had the legal right to offer proof of appellee's adulterous conduct as tending to show fault on the part of appellee and lack of fault on the part of appellant, as tending to explain and show motive for what appellant alleged to be false allegations and false testimony of appellee, and as tending to support her view that the cause of the collapse of the marriage was not discord or conflict of personalities but appellee's adultery. She argues that had the jury been allowed to hear the reading of her pleadings, as filed by her, and to hear the proof that was excluded by the judge's rulings on the motions in limine, that it might well have concluded that the marriage was not insupportable.

Until 1913, the only grounds for divorce in Texas were cruelty, adultery, abandonment and conviction of felony. All were fault grounds. In that year (1913), living apart without cohabitation for ten years, a non-fault ground, was added. In 1941, insanity, another non-fault ground, became a ground for divorce. Subsequently, the period of living apart without cohabitation was reduced from ten to seven years (1953), and from seven to three years (1967). The ground of insanity was eliminated and mental illness was substituted therefor in 1965.

Until 1969, except for the above noted legislative enactments, Texas legislation on grounds for divorce remained virtually unchanged for over a hundred years. The adversary nature of divorce litigation remained, and ancient ecclesiastical grounds for separation based upon fault formed the core of substantive divorce law. If the conduct complained about did not fit into one of these statutory grounds, a divorce was denied. Adultery was an absolute bar to a divorce where the action was brought on one of the fault grounds. Other defenses to divorce actions were condonation, connivance, collusion and recrimination. As a result, some parties whose marriage had become insupportable could not obtain a divorce. It became apparent in the late 1960's that the existing grounds for divorce and the defenses thereto were no longer compatible with modern beliefs. 8 Houston Law Review, 'Marriage and Divorce Under the Texas Family Code,' pp. 100--136 (1970).

In keeping with the idea of a realistic marital code that would meet the needs of the twentieth century society, the Legislature, in 1969, enacted the Family Code, which became effective on January 1, 1970. A non-fault ground was added to the existing grounds for divorce. This new ground is found in § 30.01 of the Code, V.T.C.A., which reads, as follows:

'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.'

The defense of recrimination was abolished by the Code and the defense of condonation was materially altered thereby. § 3.08, Family Code. Article 4630, Vernon's Ann.Civ.St., theretofore existing, was expressly repealed by the Code. The language in the repealed statute making adultery a bar against a suit for divorce does not appear in the Family Code.

We construe § 3.01 of the Code to be a ground for a divorce which is separate and independent from any other grounds provided by the Code. That section of the Code is clear, plain and unambiguous. Since divorces are granted only on statutory grounds, and as the Legislature was fully aware of the grounds for divorce that existed in 1969, when the Family Code was passed, it must be presumed that the Legislature was not satisfied with the existing traditional grounds therefor. We conclude that it was the intent of the Legislature to make a decree of divorce mandatory when a party to the marriage alleges insupportability and the conditions of the statute are met, regardless of who is at fault, on the theory that society will be better served by terminating marriages which have ceased to exist in fact. The courts have no right or prerogative to add to or take from such a legislative enactment, or to construe it in such a way as to make it meaningless. As we view the Code, when insupportability is relied on as a ground for divorce by the complaining spouse, if that ground is established by the 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, n.w.h.). 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. Otherwise, the grounds for divorce would remain the same as they were prior to the passage of the Code, and the new ground would be of negligible force. It also occurs to us that § 3.01 of the Code was incorporated therein as a new, independent and additional ground of divorce to render unnecessary the revealing to public gaze of sordid events that have come to mar two otherwise happy lives.

In Robertson v. Robertson, 217 S.W.2d 132 (Tex.Civ.App.--Fort Worth 1949, n.w.h.), the husband sued for a divorce on the ground of having lived apart from his wife without cohabitation for ten years. He frankly admitted at the trial that he had lived with another woman at times since the separation. The Court of Civil Appeals reversed the judgment of the trial court denying him a divorce and rendered judgment of divorce in his favor, holding:

'It is our belief, and we so hold, that neither appellant's conduct causing the separation nor his subsequent acts during the period of ten years relied upon by him in this case preclude him from a decree of divorce. . . .'

The holding of that case was cited with approval in Christoph v. Sims, 234 S.W.2d 901, 907 (Tex.Civ.App.--Dallas 1950, writ ref'd n.r.e.). See also Spray v. Spray, 368 S.W.2d 159 (Tex.Civ.App.--Austin 1963, writ dism'd); Fields v. Fields, 399 S.W.2d 958 (Tex.Civ.App.--Waco 1966, n.w.h.).

It was held in Helfer v. Helfer, 342 S.W.2d 8 (Tex.Civ.App.--Fort Worth 1960 n.w.h.), that adultery is not a defense to an action brought for divorce on the ground that the husband and wife had lived apart without cohabitation for as long as seven years.

Where mere living apart without cohabitation for seven years is a basis for divorce, fault or responsibility for the separation is not a material fact. McGinley v. McGinley, 295 S.W.2d 913 (Tex.Civ.App.--Galveston 1956, n.w.h.).

All of the foregoing cases were decided prior to the effective date of the Family Code. However, in each case, a divorce was sought on the non-fault ground of living apart without cohabitation for the required number of years. There is no reason why the reasoning, logic and rule of the cited cases should not apply to this case, where insupportability, a new non-fault ground, is asserted as the ground for the divorce.

Appellant did not file a cross action seeking a divorce from appellee because of his alleged adultery. We do not agree with appellant's position that on the authority of Franzetti v. Franzetti, 120 S.W.2d 123 (Tex.Civ.App.--Austin 1938, n.w.h.); Jones v. Jones, 176 S.W.2d 784 (Tex.Civ.App.--Galveston 1943, n.w.h.); and Hausladen v. Hausladen, 388 S.W.2d 952 (Tex.Civ.App.--Dallas 1965, n.w.h.), adultery remains a complete defense to a suit for divorce in an action such as the one brought by appellee. See French v. French, 454 S.W.2d 839 (Tex.Civ.App.--Houston 1st Dist. 1970, writ dism'd). Adultery is no longer a bar to the granting of a divorce. It is not a defense in an action for divorce where insupportability is alleged as a ground therefor. See Harvel v. Harvel, 466 S.W.2d 39 (Tex.Civ.App.--Houston 1st Dist. 1971, n.w.h.). Therefore, the matter of appellee's adultery, if any, was irrelevant...