Ellis v. Ellis

• Decision Date: 09 November 1949
• Docket Number: No. 11988,11988
• Parties: ELLIS v. ELLIS.
• Court: Texas Court of Appeals

Page 216

225 S.W.2d 216

ELLIS v. ELLIS.

No. 11988.

Court of Civil Appeals of Texas, San Antonio.

Nov. 9, 1949.

Rehearing Denied Dec. 7, 1949.

Carroll, Pedigo & Wade, Corpus Christi, Richard D. Hatch, Aransas Pass, for appellant.

E. Garland Brown, Corpus Christi, L. Hamilton Lowe, Austin, Leo N. Duran, Corpus Christi, for appellee.

NORVELL, Justice.

This is an appeal from a decree of divorce rendered in favor of plaintiff below, Evelyn Ellis.

After a trial to the court without a jury, judgment was rendered dissolving the marriage and effecting a division of the community property. It was recited in the judgment that all of the property held in the name of either of the parties was community property, and the court specifically found that an 8.3 acre tract of land in the town of Aransas Pass, together with all improvements thereon, was the community property of the parties. The improvements consisted of eight tourist cottages, together with furnishings, which the parties had built and were operating as a tourist court under the name of Harbor Village.

The court further found that the community property was not partible and that in order to make an equitable division thereof it was necessary to sell the same and divide the proceeds between the parties. A receiver of the community property was appointed to protect and preserve the estate and sell the properties and deliver the proceeds into court.

Appellant contends that the 'full and satisfactory evidence' standard prescribed by Article 4632, Vernon's Ann.Civ.Stats., has not been met. The case on the facts is very similar to that of Nix v. Nix, Tex.Civ.App., 218 S.W.2d 242, recently decided by this Court, in that the wife testified that she had been subjected to repeated acts of physical violence upon the part of the husband; that her nose had been damaged by blows and it had been necessary for her to secure medical treatment as a result of the beatings to which she had been subjected. This testimony, although denied by appellant, was evidently believed by the trial judge, whose duty it was to pass upon the credibility of the witnesses. Mayen v. Mayen, Tex.Civ.App., 177 S.W.2d 240; Moon v. Moon, Tex.Civ.App., 186 S.W.2d 362; Nix v. Nix, Tex.Civ.App., 218 S.W.2d 242, and authorities therein cited. It is now recognized by the great majority of the Courts of Civil Appeals, that 'the statute does not require that the testimony of either spouse be corroborated in a divorce suit.' McBee v. McBee, Tex.Civ.App., San Antonio, 247 S.W. 588; Rivers v. Rivers, Tex.Civ.App., Galveston, 133 S.W. 524; Crittenden v. Crittenden, Tex.Civ.App., Galveston, 214 S.W.2d 670; Hodges v. Hodges, Tex.Civ.App., Ft. Worth, 207 S.W.2d 943; Barrow v. Barrow, Tex.Civ.App., San Antonio, 97 S.W. 120; Mortensen v. Mortensen, Tex.Civ.App San Antonio, 186 S.W.2d 297; Tinnon v. Tinnon, Tex.Civ.App., Dallas, 278 S.W. 288; Finn v. Finn, Tex.Civ.App., Dallas, 195 S.W.2d 679, See also, Finn v. Bond, 145 Tex. 244, 197 S.W.2d 108; Wynn v. Wynn, Tex.Civ.App., Texarkana, 251 S.W. 349; Humphreys v. Humphreys, Tex.Civ.App., Texarkana, 200 S.W.2d 453; McCullough v. McCullough, Tex.Civ.App., Amarillo, 20 S.W.2d 224, Id., 120 Tex. 209, 36 S.W.2d 459; Best v. Best, Tex.Civ.App., Amarillo, 214 S.W.2d 806; Cooksey v. Cooksey, Tex.Civ.App., El Paso, 40 S.W.2d 947; Moore v. Moore, Tex.Civ.App., El Paso, 213 S.W.2d 724; Lowery v. Lowery, Tex.Civ.App., Beaumont, 136 S.W.2d 269; Black v. Black, Tex.Civ.App., Waco, 185 S.W.2d 476; Bell v. Bell, Tex.Civ.App., Eastland, 135 S.W.2d 546; Day v. Day, Tex.Civ.App., Eastland, 142 S.W.2d 394.

While corroboration is not deemed necessary as a matter of law to meet the full and satisfactory evidence rule, it is a matter which may properly be considered by the trial court, Mortensen v. Mortensen, supra, and we do not regard appellee's testimony here as being wholly uncorroborated. The appellant testified to a number of separations from his wife. It appears that after this suit was filed he entered a trailer-house situated in Refugio County which was then occupied by his wife, although he had been served with an injunction restraining him from molesting her in any way. As a result peace officers were called in. These officers testified at the trial. They had seen appellant at the trailer-house, and their testimony partially corroborates that of appellee. We overrule appellant's first and second points.

The judgment appealed from contains the following provision: 'It is further Ordered, Adjudged and Decreed by the Court that all of the previous orders heretofore entered by this Court in this cause, whether they be designated as temporary orders, interlocutory orders or otherwise, that all of said orders, judgments or decrees be and the same are hereby continued in full force and effect until the final determination of this cause, and the Receiver, Arlin Yeager, is hereby ordered to pay to the plaintiff, Evelyn Ellis, the sum of One Hundred Sixty ($160.00) Dollars per month, beginning on the 1st day of March, 1949, and on the 1st day of each and every successive month thereafter, as temporary alimony pendente lite, and until the further (sic) determination of this cause.'

Appellant contends that the court erred in continuing in force its injunctive orders and the order for alimony pendente lite. The appeal in this case was perfected by the filing of a supersedeas bond. The property of the parties is being held by a receiver pending disposition of this appeal. In any case involving a division or partition of property, it is necessary to set aside certain specific properties or monies to parties after their shares have been determined by a preceding judgment. The trial court was authorized to provide for alimony payments until this appeal has been determined and the provisions of the judgment carried out,-until the final disposition of this suit, in other words. Ex parte Lohmuller, 103 Tex. 474, 129 S.W. 834, 29 L.R.A.,N.S., 303; Ex parte Hodges, 130 Tex. 280, 109 S.W.2d 964; Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 126 S.W.2d 626; Barry v. Barry, Tex.Civ.App., 162 S.W.2d 440.

We believe that, despite the use of the word 'further' for the word 'final' in the last line of the paragraph quoted, it was clearly the intention of the trial judge to provide for alimony pendente lite until the suit was finally disposed of. The decree appealed from is final in the...