Hunter v. Hunter

• Citation: 321 S.W.2d 92
• Decision Date: 18 February 1959
• Docket Number: No. 5305,5305
• Parties: Byron G. HUNTER, Appellant, v. Marjorie H. HUNTER, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 92

321 S.W.2d 92

Byron G. HUNTER, Appellant, v. Marjorie H. HUNTER, Appellee.

No. 5305.

Court of Civil Appeals of Texas, El Paso.

Feb. 18, 1959.

Rehearing Denied March 4, 1959.

Travers Crumpton, Fort Stockton, for appellant.

Shelby H. Blaydes, Connell Ashley, Fort Stockton, for appellee.

ABBOTT, Justice.

This is an appeal brought by plaintiff below, Byron G. Hunter, from a judgment of the District Court of Pecos County, denying him a divorce from Marjorie H. Hunter, defendant below.

Appellant alleged in his First Amended Original Petition that he was married to appellee in May 1951, and that they were permanently separated on or about September 25, 1956. He further alleged that because of appellee's treatment of him, he became upset, ill of health, physically and emotionally upset, and that such treatment seiously affected appellant's physical health and well-bing; that appellee, without cause or provocation, would nag and fuss and quarrel with appellant, and keep him in a state of nervous tension and anxiety; that two children were born of this marriage; that appellee has failed and refused to permit appellant to see his two children for any length of time; that appellant is prohibited by an order of the District Court of Pecos County, Texas, from traveling outside of Buchanan County, Missouri and Doniphan County, Kansas (appellant is under the adult probation provisions of the laws of the State of Texas because of a felony conviction in Texas), and that appellee refuses to bring the children into those counties mentioned; and that all of these acts render further living together insupportable. The balance of the allegations concern the community estate and are not pertinent hereto.

The appellee filed a general denial and special exceptions denying that appellant had statutory grounds for divorce.

The trial court heard the matter without a jury, and after the testimony of appellant and upon motion of appellee, denied appellant the relief he sought, finding that appellant had failed, under the laws of Texas, to state any grounds warranting a divorce; and, in the alternative, had shown by his (appellant's) own statements, recriminating acts which would prohibit him from obtaining a divorce; and, in the alternative, by his (appellant's) testimony, had condoned the complained of acts.

Appellant brings two points of error:

(1) The Court erred in sustaining defendant's demurrer to the evidence;

(2) The Court erred in refusing to permit plaintiff to introduce all his evidence and fully develop his case.

The appellate court will not disturb the findings of the judgment of the trial court unless a clear abuse of discretion on the part of the trial court is shown. The trial court had the opportunity to observe the witnesses and judge their credibility, and to observe their demeanor. Caldwell v. Caldwell, Tex.Civ.App., 176 S.W.2d 758.

The findings as to facts under evidence is for the trial judge. If such finding finds reasonable support in the evidence, this court may not legally disturb the same even though, on the evidence, this court or some other court might have found differently as to the facts: Weston v. Weston, Tex.Civ.App., 241 S.W.2d 753.

Considering the specific acts of cruel treatment as set out in appellant's First Amended Original Petition, we observe:

1. That by reason of such treatment toward him on the part of defendant, plaintiff became upset, ill in health, physically and emotionally, and such treatment affected plaintiff's physical health and well-being.

The evidence from the record shows that appellant suffered an injury when he was twelve years...