Gallagher v. Die, 3132
| Decision Date | 22 July 1953 |
| Docket Number | No. 3132,3132 |
| Citation | 260 S.W.2d 128 |
| Parties | GALLAGHER et ux. v. DIE. |
| Court | Texas Court of Appeals |
J. R. McDougald and Nola White, Beaumont, for appellants.
Baker, Vaughan & Black, Jack R. King, Port Arthur, for appellee.
This is a divorce and custody case. Appellee, Melba Ruth Die, filed suit for divorce and for custody of her minor children, against her husband, John D. Die, in the District Court of Jefferson County. Thereafter Tom Gallagher and wife, appellants, intervened seeking care and custody of 2 of the children, Mary Louise age 7, and T. J. age 4. There were other intervenors, but they and their contentions are not involved in this appeal. Trial was to a jury which found that: 1) the husband John D. Die had been guilty of cruel treatment toward appellee; and 2) that it was to the best interest of the minor children Mary Lou and T. J., that they be awarded to their mother, the appellee. While all parties filed motion for judgment, the Court entered judgment in accordance with the findings of the jury-granting appellee a divorce from her husband, and awarding her the care and custody of the minor children Mary Louise and T. J.
Appellants moved for a new trial, which was by the Trial Court overruled, and they now appeal to this court contending: 1) That the Trial Court erred in granting appellee a divorce from her husband for the reason that she was not a resident of Jefferson County for 6 months next preceding the filing of her suit; and 2) That the findings of the jury that the interests of the minor children Mary Louise and T. J. would be best served by placing them in the care and custody of their mother, upon which the judgment of the Trial Court was based, is against the overwhelming weight and preponderance of the evidence.
With reference of appellants' 1st contention:-appellee's petition stated that she had resided in Jefferson County for more than 6 months next preceding the filing of her suit. On the trial of the case she testified that she was born in Port Arthur (Jefferson County); that she never at any time in life intended to abandon residence in Jefferson County; that she had a place rented in Jefferson County for the 18 months preceding the filing of the suit; that her furniture, clothes and cooking utensils were in that place at all times; that she received mail at that place; that any trips she made to Galveston or elsewhere were just for visits; that she did not intend to stay in Galveston on the occasion of her visit there-and in fact took only 2 dresses, a suit, and a pair of slacks with her-leaving the balance of her clothes behind. The witness Gertrude Ronquilla testified that appellee had lived in Port Arthur for the 18 months preceding the filing of this suit; that appellee paid rent on the place in Port Arthur all during that period, although she had on accasion made trips back and forth to Texas City, Freeport, and to Galveston; that whenever appellee made any of these trips she always left her clothes, furniture, cooking utensils, and everything else, in her rented premises in Jefferson County.
The law applicable to appellants' 1st contention is that the issue of residence of the plaintiff in a divorce case is a fact issue to be determined by the Trial Court, and should not be disturbed on appeal unless there is a clear...
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Prock v. Morgan
...decree was rendered. Goodman v. Goodman, Tex.Civ.App., 236 S.W.2d 641; Ex parte Garcia, Tex.Civ.App., 187 S.W. 410; Gallagher v. Die, Tex.Civ.App., 260 S.W.2d 128; 15 Tex.Jur. 675, § Here we have a suit by an outsider (the paternal grandmother) against the natural mother to take from such m......
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Grimes v. Knowles
...Texarkana, 1950, n.w.h.); 20 Tex.Jur.2d 649, Sec. 323; State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901 (Tex.Sup., 1900); Gallagher v. Die, 260 S.W.2d 128 (Tex.Civ.App., Waco, 1953, n.w.h.); Fox v. Fox, 210 S .W.2d 622, 624 (Tex.Civ.App., Fort Worth, 1948). No proof of the Alabama law......
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Vinson v. Vinson, 3811
...Tex.Civ.App., 185 S.W.2d 476, n. w. h., and cases there cited, points 1 and 2. This doctrine was re-announced by this Court in Gallagher v. Die, 260 S.W.2d 128, n. w. h. It is interesting to note that our Supreme Court in Haymond v. Haymond, 74 Tex. 414, 12 S.W. 90, on page 92, 'We do not t......
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Mills v. Bartlett, A-10044
...the suit. Haymond v. Haymond, 74 Tex. 414, 12 S.W. 90. The Courts of Civil Appeals have almost unanimously so held. Gallagher v. Die, Tex.Civ.App., 260 S.W.2d 128; Black v. Black, Tex.Civ.App., 185 S.W.2d 476; Fox v. Fox, Tex.Civ.App., 179 S.W. 883; Snyder v. Snyder, Tex.Civ.App., 279 S.W. ......