Harris v. Harris, 11740.

• Decision Date: 01 November 1945
• Docket Number: No. 11740.,11740.
• Citation: 190 S.W.2d 489
• Court: Texas Court of Appeals
• Parties: HARRIS v. HARRIS.

190 S.W.2d 489

HARRIS v. HARRIS.

No. 11740.

Court of Civil Appeals of Texas. Galveston.

November 1, 1945.

Appeal from District Court, Galveston County; Russel H. Markwell, Judge.

Suit by Nellie Mae Harris against Willie Harris, for a divorce, tried to court without a jury, in which defendant filed a cross-action for a divorce. From a judgment granting plaintiff a divorce, denying defendant's cross-action, awarding custody of parties' child to plaintiff, and dividing parties' property, defendant appeals.

Affirmed.

Thomas H. Dent, of Galveston, for appellant.

Peden & Stevens, of Houston, for appellee.

GRAVES, Justice.

This appeal is from a judgment of the 10th District Court of Galveston County, sitting without a jury, divorcing two middle-aged negroes, who had one five-year-old child and some community property, only, on the petition of the appellee-wife therefor, the cross-action of the appellant-husband for a divorce instead for himself having been denied.

The court further awarded the custody of the child to the appellee, and, pursuant to R.S. Article 4638, Vernon's Revised Civil Statutes of Texas, divided such property between the parties as it deemed just and right, awarding the custody of the child, which was a boy, to the mother, without requiring the father to contribute anything to its future support.

In that decree the judgment did not divest the appellant-husband of his interest in the title to the only real estate the couple owned —that is, their homestead—but merely provided that the wife should thereafter have "the exclusive right to the use and occupancy of the hereinafter described property, same being the homestead of the parties", as her part of the division, she being left with the sole duty and obligation to support the child.

In this court the husband, as appellant, states, in substance, these two claimed points of error for reversal:

"1. The Court did not have jurisdiction to try this case, for the reason that the jurisdiction allegation of the plaintiff's petition fails to aver that `Plaintiff was an actual bona fide inhabitant of the State for twelve months next preceding the filing of the petition, and had RESIDED in Galveston County for six months next preceding the filing of the petition', and for the further reason that the findings of fact by the Court show that plaintiff had not RESIDED in Galveston County for six months next preceding the filing of the petition."

"2. All property acquired after marriage, except by gift, devise, or descent, is community property, and the beneficial interest of the spouse is equal, and the Court abuses its discretion when it gives two-thirds (2/3) of such estate to one spouse, and one-third (1/3) thereof to the other."

Neither of these contentions—in the state of the record—can be sustained. In haec verba, the appellee's so-challenged petition alleged as follows:

"I. Plaintiff is now and has been for more than one year next preceding the filing of this petition, an actual bona fide inhabitant of the State of Texas, and has been for more than six months next preceding the filing of this petition, an actual bona fide inhabitant of the County of Galveston, Texas.

"II. That plaintiff and defendant were duly and legally married in the City of Galveston, County of Galveston, Texas, on or about the 16th day of March, 1935, and are now, in law, man and wife, though they have ceased to live and cohabit together as such since on or about the 25th day of January, 1945.

"III. That during the existence of the marriage of the parties hereto, there was born to them one child, a boy, Cornelius Harris, now of the age of 5 years.

"IV. Plaintiff would show to the Court that the minor child herein named has, at all times since his birth, remained in the care and custody of the plaintiff herein, and that she desires to have the permanent care, custody and control of said minor child, Cornelius Harris."

Not only did appellant fail to object, or except, in the trial court to this averment, but, as indicated by his cross-action, he so answered the allegations of appellee's petition, thereby invoking the jurisdiction of the court on the merits, and seeking affirmative relief for himself; but he further, in fact, expressly admitted the truth of the quoted paragraph...