Finn v. Finn, 13589.

• Decision Date: 05 January 1945
• Docket Number: No. 13589.,13589.
• Citation: 185 S.W.2d 579
• Parties: FINN v. FINN.
• Court: Texas Court of Appeals

185 S.W.2d 579

FINN v. FINN.

No. 13589.

Court of Civil Appeals of Texas. Dallas.

January 5, 1945.

On Rehearing February 2, 1945.

Appeal from District Court, Dallas County; Paine L. Bush, Judge.

Suit for divorce by Evelyn Finn against Edward J. Finn. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

G. H. Crane, of Dallas, for appellant.

Bonney & Paxton, M. M. Wade, and Chas. S. McCombs, all of Dallas, for appellee.

BOND, Chief Justice.

This is a divorce suit instituted by the wife, alleging that her husband, "disregarding the solemnity of his marriage vow and his obligation to treat plaintiff with kindness and attention and, within a few years after said marriage, commenced a course of harsh and tyrranical conduct toward plaintiff, which continued, with very slight intermission, until plaintiff finally separated from defendant on or about the 14th day of November, 1943. On divers occasions, while plaintiff lived with defendant as aforesaid, defendant was guilty of excesses, cruel treatment and outrages toward plaintiff of such a nature as to render their living together insupportable; that a few months before plaintiff and defendant separated, the defendant, without any cause whatsoever, nagged and fussed at plaintiff; that defendant, without cause, continuously fussed and nagged at plaintiff; and plaintiff and defendant have no common interests."

It will be observed that the allegations are within the language of the legislative enactment, consisting generally of fussing and nagging. The acts of cruelty are not specifically stated so as to enable the court to determine whether they constitute excesses, cruelty and outrages, as contemplated by the statute. "Fussing and nagging" are insufficient allegations on which to base a divorce. The acts of cruelty must be specifically stated to render the petition sufficient to meet attack as being fundamentally erroneous. General allegations of excesses, cruel treatment or outrages are mere conclusions of the pleader. Allegations that the defendant cursed and abused the plaintiff unmercifully or abused the latter severely (Claunch v. Claunch, Tex.Civ.App., 203 S.W. 930); that the plaintiff slandered defendant and told a certain person that the defendant was leading an immoral life (Denning v. Denning, Tex.Civ.App., 99 S.W. 1029); that the husband accused the wife of theft (Nogees v. Nogees, 7 Tex. 538, 58 Am. Dec. 78), or that the husband charged the wife with unchastity or adultery (Bingham v. Bingham, Tex.Civ.App., 149 S.W. 214), and many other general allegations not followed by specific charges, are insufficient.

Moreover, the evidence, to warrant a decree of divorce, must of course be introduced. The trial court should refuse to grant a divorce where the evidence fails to establish cruelty or other grounds enumerated in the statute. The statute is plain, leaving no judicial discretion to be exercised, other than a determination of the sufficiency of pleadings and evidence to warrant the decree. Vernon's Ann.Civ.St. art. 4629. The statute should be strictly construed. When the lawmaking power has determined the policy with respect to and has specified the ground upon which divorce is authorized, it remains but for the judiciary to enforce the legislative will. The validity of the marriage relationship is the substructure upon which the peace, happiness and perpetuity of society depends. Courts are not at liberty to permit sympathy for the unhappy condition in which a couple has become engulfed, because of imperfections of temper or difference in religious views, to control their judgment. Courts must take the plain provisions of the statute and the well-established course of court decisions as their guide. In this case, the evidence is little more specific than the pleadings. Plaintiff testified that defendant "usually came home drinking or drunk, and he was always fussing at me when he would get tight. * * * Usually because he was tight maybe what I did didn't please him. * * * Q. Do you recall any fussing about the baby? A. Yes, sir. Q. What was that about? A. Well, he didn't make her mind and children have to be disciplined, and he objected to me correcting her like the things she did." This is the extent of her grievances. Evidently, the related fussing and discipline of their minor child are not the foreboding of an unhappy future for themselves and their children. The husband and wife are of different religions—he a Jew and she a gentile; they lived in the home of the wife's mother and, according to the record here presented, the wife's family attempted to interpose their religious views upon the husband in an effort to change his religious faith. Evidently that could not be accomplished; thus, as plaintiff alleged, "plaintiff and defendant have no common interests." Appellant raises the issue of fundamental error in pleadings and proof —judgment should have been rendered for the defendant. Evidently the pleadings and evidence are insufficient, hence it becomes the duty of this Court to render such judgment as should have been rendered by the court below, that plaintiff take nothing by her suit; it is so ordered.

Reversed and rendered.

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