Dodd v. Dodd

• Decision Date: 14 March 1929
• Docket Number: (No. 2248.)
• Citation: Dodd v. Dodd, 15 S.W.2d 686 (Tex. App. 1929)
• Parties: DODD v. DODD.
• Court: Texas Court of Appeals

15 S.W.2d 686

DODD v.DODD.

(No. 2248.)

Court of Civil Appeals of Texas. El Paso.

March 14, 1929.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Suit for divorce by John C. Dodd against Bessie B. Dodd.From a judgment for plaintiff, defendant appeals.Affirmed.

W. W. Bridgers, of El Paso, for appellant.

Lea, McGrady, Thomason & Edwards, of El Paso, for appellee.

WALTHALL, J.

This case presents an appeal in a suit for divorce brought by John C. Dodd against Bessie Dodd.

Without stating the verbiage of the petition in stating the grounds for the divorce, it is brought under the first subdivision of article 4629, R. C. S., and states specifically acts on the part of his wife, Bessie Dodd, as constituting excesses, cruel treatment, or outrages toward him of such nature as to render their further living together insupportable.The specific facts alleged are substantially to the effect that Bessie Dodd drinks to excess; becomes angry without cause and curses him; refuses to stay at home, but goes out at night several times a week, and stays away until daylight, and refuses to tell him with whom she has been or where; admits openly that she goes out with other men; on a time specified, in the presence of a mutual friend, she struck plaintiff, ran him out of the home, and threw rocks at him; at a time stated defendant became intoxicated in Juarez, and remained in "the red light district all night"; and other specific charges we need not state.

Mrs. Bessie Dodd answered by general demurrer, general denial, and special plea, denying that "defendant[evidently meaning plaintiff] is a bona fide inhabitant of the state of Texas," for a period of 12 months, and a resident of the county of El Paso for a period of 6 months, next preceding the filing of this suit.The case was tried without a jury, and judgment was entered granting the divorce.Bessie Dodd prosecutes this appeal.

Opinion.

Appellant submits that the evidence does not show appellee, at the time of exhibiting his petition, to be an actual bona fide inhabitant of the state of Texas within the meaning of the divorce laws of this state for a period of 12 months, and to have resided in the county of El Paso where the suit is filed for 6 months, next preceding its filing; that the latter portion of article 4631, reading, "A citizen of this state who is or has been absent from this state for more than six months in the military or naval service of the United States or of this state, shall be entitled to sue for divorce in this state and in the county in which such person had his or her residence before entering such service," is invalid and of no force or effect, because vague, uncertain, ambiguous, and meaningless, and discriminatory in not requiring the residence in the state and county for the period of time required of those not in the military or naval service; that the evidence shows that appellee was not a resident of this county at the time of filing this suit, and had not resided in this county for the time required by the statute; that the evidence does not show that appellant was guilty of the wrongs complained of; that the evidence shows that by continuing to live with appellant after the wrongs complained of appellee condoned the wrongs; that the evidence shows that both appellant and appellee drank intoxicating liquors together, visited saloons in Juarez together, and for that reason appellee will not be heard to complain.

The following facts are not controverted: John C. Dodd enlisted in the United States army in the state of Oklahoma in 1923.He testified: "I came from Oklahoma," and was sent to Ft. Bliss, in El Paso county, Texas, in that year, and has remained in El Paso county, Texas, until the trial of this case in September, 1928.While in the army he was in the veterinary service.He was married to Bessie Dodd on October 13, 1925.On July 16, 1926, he received an honorable discharge from the army service.In September, 1926, he re-enlisted in the army service, giving his place of residence as West Overland street, El Paso, Tex., and at the time of the trial of this casehe was still in the army and at Ft. Bliss.During the time he and his wife, Bessie Dodd, lived together, they maintained a residence in the city of El Paso.While in the army he was permitted to leave the military reservation every night.At such times he lived with his wife at their places of residence in the city of El Paso and away from the military post.Appellee while in this state acquired no property, personal or otherwise.Dodd and his wife separated on the 8th day of May, 1928.After the separation, Dodd remained at Ft. Bliss, in El Paso county, and Bessie Dodd continued to remain in the city of El Paso.

Dodd testified: "When I was discharged from the army, my intention was to make my home in El Paso, and I remained in El Paso after I was discharged for several months, when I re-enlisted, and during...