Garza v. Garza

• Decision Date: 19 December 1945
• Docket Number: No. 11565.,11565.
• Citation: 191 S.W.2d 767
• Parties: GARZA v. GARZA.
• Court: Texas Court of Appeals

191 S.W.2d 767

GARZA v. GARZA.

No. 11565.

Court of Civil Appeals of Texas. San Antonio.

December 19, 1945.

Appeal from District Court, Ninety-Third District, Hidalgo County; W. R. Blalock, Judge.

Action by Jose M. Garza against Enriqueta Garcia Garza for divorce. From a judgment denying the divorce, the plaintiff appeals.

Affirmed.

Kelley & Looney and Ralph T. Rawlins, all of Edinburg, for appellant.

Joe V. Alamia and J. F. Carl, both of Edinburg, for appellee.

MURRAY, Justice.

This is an appeal from a judgment denying appellant, Jose M. Garza, a divorce from his wife, Enriqueta Garcia Garza. The trial was before the court without the aid of a jury, judgment being rendered before appellant had rested upon the theory that his testimony was in the nature of a judicial admission that he was not entitled to a divorce.

Appellant submits but one point, which is as follows:

"The error of the trial court in holding that appellant (plaintiff) judicially admitted that he was not entitled to a divorce on the ground that appellee (defendant) was guilty of such cruelty as to render their living together insupportable and in denying the divorce at such stage of the proceedings."

Appellant plead as ground for a divorce cruel treatment of himself by his wife. Appellant testified that he and Enriqueta were married in Brownsville, Texas, on January 11, 1942. They lived together at Edinburg until October 4, 1942, when he voluntarily entered the armed services of the United States. On November 27, 1942, he landed at the Panama Canal Zone and continued to be stationed there from that date until January, 1945. He had one emergency furlough, in February, 1944, and that was his only furlough, except the one he was on at the time of the trial of this case. He did not have anything to do with his wife, or she with him, when he came home on his emergency furlough, in December, 1944. He is now stationed in California. There is no question as to his legal residence in Edinburg, Hidalgo County, Texas. After his marriage he brought his wife to Edinburg to live and was happy for a period of only two or three weeks, when she grew cold toward him and began to quarrel and fuss with him. He undertook to find out why she had assumed such an attitude toward him, but was unable to do so. This quarreling and fussing kept up until he went into the armed service. Some times she would quarrel with him all night when he was in great need of sleep so that he could do his work. His wife gave birth to a son on January 15, 1943. The baby died May 17, 1943. His wife hated to see him leave when he went into the armed forces and told him goodbye. He wrote her a letter congratulating her when the baby was born. She was living with her mother when the child was born. He had taken her to her mother to live when he left, as he said he wanted her to have good treatment during her trying time of childbirth. As to why he did not separate from his wife before he left, he testified: "One thing is that I was going into the army and was getting away, and I thought maybe she would change later on. Another thing, we had a child. I thought that she would change after the child's birth. Q. You wanted to make a go of it if possible? A. That is right." While he was away he received three letters. The first was nice, but the last two upset him. He destroyed these letters. An objection was sustained to his stating what was in the letters. He could not sleep after he received these letters, they upset him so much. The Sergeant relieved him from guard duty because he could not sleep. When he went into the army he made an allotment to his wife of $50 per month. One month he wrote for $20 and she sent it to him. Another month he wrote for $30 and she sent that, again he wrote for $40, which she did not send. On February 10, 1943, she wrote him that as soon as she had fully recovered from the effects of childbirth she was going to return to their home in Edinburg, to which he replied that he was very sorry to tell her, but that he had turned the house and furniture over to his friend.

During cross-examination of appellant the following occurred:

"Q. And when you talked to those people that you say you talked to, you had already written this letter? A. Yes, sir.

"Q. Dated February 10th? A. Yes, sir.

"Q. In which you had told her that there was no place for her to go, that you had disposed of the furniture? A. Yes, sir. My father tried to get her to—

"The Court: Do not make any voluntary statement—

"Q. What I am trying to get at, at the time you left for the army, you were not separated from your wife? A. No, sir.

"Q. And you wrote your mother-in-law that you were leaving for the army, and wanted your mother-in-law to have your wife, have her baby born at her house? A. Yes, sir.

"Q. And you did not want her to stay with your father because she was in a family way? A. Yes, sir.

"Q. And after you went into the army you made a voluntary allotment to your wife, did you not? A. Yes, sir.

"Q. And everything was nice? A. Yes, sir.

"Q. And then you started sending home for money—the first time you asked for twenty dollars which she sent you? A. Yes, sir.

"Q. And the second time you asked for thirty dollars and she sent that. And the third time you asked for forty dollars and she did not send that? A. No, sir.

"Q. I just want to find out when you decided to leave your wife? It was in February, 1943, after the baby was born that you wrote her this letter? A. Yes, sir.

"Q. And that was when you decided? A. That was when I got the first mean letter.

"The Court: I do not think that those letters you say you got from your wife have any bearing on that, but I would like to know just what were in those letters, and would like for you to get that off your chest—I want you to tell me just what were in those letters that you say you got—tell me—A. O. K. In the first letter, she says she was just tired of me; first her child was born and healthy and that was all; that she did not want me any more—

"The Court: She just abandoned you? A. That is right—that is what happened.

"The Court: What was in the other letters? A. She said that she was going to Monterrey, and was going to stay with her mother and did not want to see me any more—

"The Court: Was that the cruel treatment that you mentioned that you could not live with her on account of that? A. Not only that—

"The Court: What else? A. The way she treated me.

"The Court: You stated a while ago you thought you could make a go of it? A. I thought I could.

"The Court: When you got those letters, that was a statement that she was going to abandon you and abandonment can not be cruel treatment—That is not necessarily cruel treatment—she stated in that letter she was not going to live with you any more? A. Yes, sir.

"The Court: That was where she was proposing to leave you—that was why it was impossible for you to live together.

"Mr. Rawlins: When he had letters like that—that was why it was impossible for them to live together.

"The Court: I am inclined to think that it was a judicial admission that he could not live with her after he got those letters, but that is just a statement of abandonment. Up until the time he got these letters, there was not any evidence of intention of the defendant to abandon you. There is presumption that this evidence was destroyed, whether it was destroyed to keep it out of evidence or otherwise. The Court is of the opinion that that does not constitute cruel treatment; the courts have held that that does not constitute cruel treatment—I am going to stop this and render judgment denying the divorce.

"Mr. Rawlins: To which ruling of the Court we except—"

It is apparent from appellant's own testimony that the cruel treatment which caused him to decide that he could not live with his wife was what was contained in two letters written to him by her after he had gone to Panama. In one letter she told him she "was just tired of him" and "did not want him any more," and in the other letter "She said that she was going to Monterrey, and was going to stay with her mother and did not want to see me any more." In another place in his testimony he stated: "She told me that she was going to Monterrey and have a good time. She told me that she just did not love me any more." It is true they had quarreled and she had grown cold toward him before he left to go to Panama, but he thought they could still live together and make a go of things when he left. After he left to go into the armed forces they had no contact with each other with the exception of the letters which passed between them. As was stated by the trial judge, the most that can be said of the letters is that they were simply notice to him that she did not love him and that she was abandoning him. Abandonment is not such cruel treatment as will justify a divorce, unless it has existed for three or more years. Art. 4629 Vernon's Ann. Civ.Stats.; Coleman v. Coleman, Tex.Civ. App. 22 S.W.2d 764.

It is true that he testified that she quarreled and fussed with him before he went into the armed service, but he condoned this conduct and tried to make a go of it. This condoned conduct could not be the basis of a divorce on the ground of cruel treatment unless it was afterwards repeated. Oster v. Oster, Tex.Civ.App., 130 S.W. 265; Murchison v. Murchison, Tex.Civ.App. 171 S.W. 790. He and his wife have never had anything to do with each other personally since he left to go to Panama and, therefore, she could not have repeated this prior conduct.

The trial court was correct in concluding that appellant's testimony, to the effect that the letters received from his wife was the cruel treatment on which he based his suit, was in the nature of a judicial admission that he was not entitled to a divorce. Especially is this true in view of the fact that the court admonished him that the letters at most amounted to nothing more than abandonment, and in view...