Hester v. Hester, 265

• Decision Date: 16 March 1967
• Docket Number: No. 265,265
• Citation: 413 S.W.2d 448
• Parties: Dorothy F. HESTER, Appellant, v. G. K. HESTER, Appellee. . Tyler
• Court: Texas Court of Appeals

Page 448

413 S.W.2d 448

Dorothy F. HESTER, Appellant, v. G. K. HESTER, Appellee.

No. 265.

Court of Civil Appeals of Texas.

Tyler.

March 16, 1967.

Jack K. Allen, Tyler, for appellant.

Ramey, Brelsford, Flock & Devereux, Michael A. Hatchell, Tyler, W. B. Fields, Athens, for appellee.

MOORE, Justice.

From a judgment which granted a divorce to the plaintiff-husband on the ground of cruel treatment, the defendant-wife prosecutes this appeal. The case was tried by the court without the aid of a jury. No conclusions of fact and law were requested or filed.

The defendant predicates her appeal upon the ground that the evidence is insufficient to show that she was guilty of excesses, cruel treatment or outrages toward plaintiff of such a nature as to render their further living together insupportable. We affirm the judgment of the trial court.

The record reveals that the parties were married on November 29, 1942, and lived together until their separation in February, 1964. There were no children under eighteen years of age and no complaint was made of the division of the community property. The present suit is the second divorce action instituted by G. K. Hester seeking a divorce from Mrs. Hester. The first suit resulted in a judgment denying plaintiff a divorce. Because of the prior judgment dated January 13, 1965, it was conceded in the trial of the present case that all acts of defendant prior to January 13, 1965, were res adjudicata as grounds for divorce in the present suit.

A summary of the appellee's testimony upon which the trial court based his decision that a divorce should be granted shows that the parties were separated in February, 1964. Thereafter, appellee filed his first suit for divorce. The trial in that case resulted in a jury verdict in favor of the appellee, G. K. Hester. The trial court, however, denied the divorce by judgment dated January 13, 1965. The refusal of a divorce failed to effect a reconciliation and the parties continued to live separate and apart. Shortly after the entry of the judgment in that case, appellant commenced harassing appellee by calling him over the telephone while he was at his work. In each instance, he testified, she would curse and ridicule him. He testified that the calls were made with such frequency as to interfere with his work; that she would call him at all hours of the night and again curse and abuse him and that the night calls were made with such regularity and were so abusive as to interfere with his sleep and rest at night. On one occasion, she came to a bowling alley where he was visiting with friends and there created a disturbance by cursing and abusing him and threatening personal violence; that on another occasion, she again came to the bowling alley and again cursed and abused him and threatened personal violence; when he attempted to leave, she attempted to prevent him from leaving by holding onto the door of his automobile; that as a result of this episode, he went to the police station to file a complaint; that she followed him and created an argument at the police station. He further testified that at no time during the separation had Mrs. Hester ever made a good faithful attempt at reconciliation, but on the contrary, on each encounter, either in person or by telephone, she was always unfriendly and persisted in cursing, abusing and ridiculing him for refusing to live with her; that her conduct had caused him to become highly nervous and emotionally unstable, and as a result, he had been compelled to seek treatment by a physician. He testified that because of her conduct and attitude toward him, he could not, under any circumstances, ever live with appellant again as her husband.

Appellant testifying in her own behalf disputed most of ...