Griggs v. Griggs, 7845
Decision Date | 15 April 1968 |
Docket Number | No. 7845,7845 |
Citation | 428 S.W.2d 165 |
Parties | Joyce C. GRIGGS, Appellant, v. J. Horace GRIGGS, Jr., Appellee. . Amarillo |
Court | Texas Court of Appeals |
Miller, Sanders, Baker & Miller Amarillo, for appellant; Oth Miller, Amarillo, of counsel.
Lockhart, Lindsey & Neal, Amarillo, for appellee; E. H. Lindsey, Amarillo, of counsel.
Joyce C. Griggs, as plaintiff, filed a suit for divorce against J. Horace Griggs, Jr., as defendant, on January 5, 1967. On February 16, 1967, defendant filed a general denial. On May 31, 1967, defendant filed cross action against the plaintiff. On June 9, 1967, the plaintiff filed exceptions and a general denial as to defendant's cross action. On October 10, 1967, defendant filed his amended cross action. No other pleadings were filed and the case was tried by the court without a jury on October 11, 1967. Both of the parties were present and testified. After hearing the evidence introduced, the judge granted the defendant a divorce from the plaintiff and gave all community property to the plaintiff and custody of the children and required defendant to pay for the childrens' support. From that judgment the plaintiff perfected this appeal as to the divorce only. The parties will hereafter be referred to as they were in the trial court.
This appeal is presented upon two assignments of error contending first there was insufficient evidence to show that the plaintiff had been guilty of such cruel treatment toward defendant as to render their living together insupportable, and second the case should be reversed because defendant's admitted adultery was a complete defense to the suit for divorce. The plaintiff requested the judge to state in writing the findings of fact and conclusions of law. The judge filed in writing such findings of fact and conclusions of law as follows:
'FINDINGS OF FACT
1. That Cross-Plaintiff and Cross-Defendant lived together as husband and wife until on or about the 1st day of August, 1966.
2. That Cross-Plaintiff, J. HORACE GRIGGS, JR., committed adultery prior to the separation between him and Cross-Defendant, JOYCE C. GRIGGS.
3. That Cross-Defendant, JOYCE C. GRIGGS, forgave the acts of adultery of Cross-Plaintiff by taking him back into marital relationship, which forgiveness amounted to condonation on the part of Cross-Defendant, JOYCE C. GRIGGS.
4. Cross-Plaintiff, J. HORACE GRIGGS, JR., was guilty of no act past the date of separation that would either constitute an act of recrimination or nullify the condonement of prior acts.
5. That Cross-Defendant, JOYCE C. GRIGGS, was guilty of excesses, cruel treatment, both physical and mental, and outrages toward Cross-Plaintiff, J. HORACE GRIGGS, JR., of such a nature as to render their living together insupportable.
1. Cross-Plaintiff was entitled to a divorce in his favor dissolving the marriage between him and Cross-Defendant.
2. Cross-Plaintiff was not barred from securing a divorce because of his acts of adultery, since these acts were condoned prior to separation and not repeated thereafter.'
As to the insufficiency of the evidence, both parties contended they could not live together as man and wife. We make no determination as to the degree that each person contributed to the final termination of their marital relations but will quote a portion of the evidence, if true and believed by the judge, which would be sufficient to constitute extreme cruel...
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