Hailey v. Hailey, 6849
| Decision Date | 16 March 1959 |
| Docket Number | No. 6849,6849 |
| Citation | 322 S.W.2d 575 |
| Parties | Frances HAILEY, Appellant, v. Ray HAILEY, Appellee. |
| Court | Texas Court of Appeals |
Calloway Huffaker and Harold Green, Tahoka, for appellant.
Hackney & Crawford, Brownfield, for appellee.
Appellee, as plaintiff, brought the suit for divorce against the appellant, also seeking a division of the parties' community property and custody of their minor child, a girl, four years of age. Appellant filed a crossaction against appellee for divorce and for division of the community property and also custody of the minor child. The trial court entered judgment granting the plaintiff a divorce and the custody of the minor child and divided the community property. The court also denied appellant a divorce on her cross-action. From this judgment the appellant has perfected this appeal.
By appellant's first three points of error it is contended there is no evidence of excesses, cruel treatment, or outrages on the part of appellant toward appellee of such a nature as to render their living together insupportable such as is contemplated by Article 4629(1) of the R.C.S.T., Vernon's Ann.Civ.St. art. 4629(1); that there is not sufficient evidence of excesses, cruel treatment, or outrages toward appellee of such a nature as to render their living together insupportable such as is contemplated by Article 4629(1) of R.C.S.T., and the finding by the court, that the appellant was guilty of such excesses, cruel treatment, and outrages was so against the overwhelming weight and degree of the evidence as to be manifestly wrong and unjust; and the evidence introduced was not full and satisfactory as required by Article 4632 of R.C.S.T., Vernon's Ann.Civ.St. art. 4632, as would warrant a divorce on behalf of appellee under Article 4629(1) of R.C.S.T.
The statement of facts is very voluminous. We think it is best not to detail the evidence produced upon the trial either on the issue of divorce or custody of the child. Whether or not the treatment of the complaining party is of such nature as to render their living together insupportable is a question of fact to be determined by the judge trying the case and a wide discretion is conferred upon him in determining questions of fact pertaining to the divorce, custody of the child and the division of community property. We cannot say that the judge abused his discretion in determining the questions of fact presented and, in the absence of a showing that the discretion has been abused, the appellate court will not revise or interfere with the conclusions of the trial court. Dawson v. Dawson, 63 Tex.Civ.App. 168, 132 S.W. 379; Lloyd v. Lloyd, Tex.Civ.App., 107 S.W.2d 1047; Scannell v. Scannell, Tex.Civ.App., 117 S.W.2d 538; Kreiter v. Kreiter, Tex.Civ.App., 137 S.W.2d 184; Mansfield v. Mansfield, Tex.Civ.App., 308 S.W.2d 80. We cannot agree with appellant's contention that there is no evidence but think there is sufficient and also full and satisfactory evidence to support the findings of the judge. We have carefully considered all of the evidence and we do not think the holding of the trial judge is against the great weight and preponderance of the evidence as to be manifestly unjust, but on the contrary, the great weight and preponderance of the evidence sustains the holding of the trial court. We know of no measure of the weight of the evidence (unless the witnesses on the evidential facts are counted) other than the feeling of probability which it engenders. The problem of proof cannot be resolved scientifically by quantitative analysis. Preponderance is not alone determined by the number of witnesses testifying to a particular fact or state of facts. It may occur that the statement, or the superior knowledge of the subject matter testified to, of one or a few witnesses may be of more importance, and be relied upon with a greater degree of assurance than that of greater number; and the testimony of the witnesses are oftentimes strengthened or weakened by other facts and circumstances disclosed by the evidence. Regardless of how pure a wife may be, when she continues over the protest of her husband to go out of town with a man other than her husband, and they stay at the same hotel, this connected with other testimony showing questionable circumstances, would certainly be so disturbing to the husband as to render their further living together insupportable. Appellant's first three points of error are overruled.
By appellant's fourth point of error she contends there were no pleadings by ...
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Hailey v. Hailey, A-7340
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Hellums v. Hellums
...is prohibited by Article 4638. Appellant cites as authority therefor, among others, the opinion of the Court of Civil Appeals in Hailey v. Hailey, 322 S.W.2d 575. Since the appeal has been perfected our Supreme Court has said in Hailey v. Hailey, 331 S.W.2d 299, 303, 'that part of Art. 4638......