Hutt v. Hutt

• Decision Date: 08 November 1934
• Docket Number: No. 10010.,10010.
• Citation: 76 S.W.2d 567
• Parties: HUTT v. HUTT.
• Court: Texas Court of Appeals

76 S.W.2d 567

HUTT v. HUTT.

No. 10010.

Court of Civil Appeals of Texas. Galveston.

November 8, 1934.

Rehearing Denied December 6, 1934.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Action by J. R. Hutt against Pauline Beasley Hutt. Judgment for plaintiff, and defendant appeals.

Affirmed.

Stewarts and W. N. Zinn, all of Galveston, and McLean, Scott & Sayers and Rufus J. Lackland, Jr., all of Fort Worth (Glover Johnson, of Fort Worth, of counsel), for appellant.

M. L. Cook and Levy & Levy, all of Galveston, for appellee.

GRAVES, Justice.

This appeal is from a judgment divorcing the parties, which in part recites:

"This cause came on to be heard in its regular order on the 25th day of January, A. D. 1933; and the plaintiff appeared in person and by attorney and announced ready for trial; and the defendant appeared in person and by her attorneys and filed and submitted motion for a continuance which, upon due consideration, was by the Court found to be wholly insufficient and without merit, and, therefore, overruled; and both parties having waived a jury, the cause proceeded to trial, the matters in controversy, as well of fact as of law, being submitted to the Court; and the Court, having heard the pleadings, evidence and the argument of counsel and being fully advised in the premises, is of the opinion that the material allegations in plaintiff's petition are true and are established and proved by full and satisfactory evidence; and it appearing to the Court from such evidence that the cruel treatment of plaintiff by defendant as alleged in plaintiff's petition renders the further living together of the plaintiff and defendant insupportable, the Court is of the opinion that plaintiff is entitled to the relief prayed for in his petition."

After so decreeing, the learned trial court also filed these findings of fact and conclusions of law:

"Findings of Fact.

"The Court finds as a fact that the plaintiff, J. R. Hutt, at the time of the filing of this suit was an actual bona fide inhabitant of the State of Texas and had been such continuously for more than twelve months immediately next preceding the filing of this suit and also that plaintiff resided continuously in Galveston County for more than six months immediately next preceding the filing of this suit.

"That all of the material allegations contained in plaintiff's petition were established upon the trial of this cause to be true to the satisfaction of this Court.

"That the Court finds from the evidence to its satisfaction that defendant was guilty of such excesses and cruel treatment toward plaintiff as to render their further living together as man and wife insupportable.

"The Court also finds from all the facts and circumstances in evidence in this cause that plaintiff gave the defendant no cause or justification for the acts of cruelty committed by defendant against plaintiff.

"Conclusions of Law.

"I therefore conclude as a matter of law that plaintiff is entitled to a decree dissolving the bonds of matrimony heretofore existing between plaintiff and defendant."

The material averments of the appellee's petition thus referred to, and upon which the divorce was granted, in epitome, were these:

"II. That plaintiff and defendant had formerly been married, to-wit, on or about June 22, 1927, and that on April 21, 1931, defendant secured a divorce from plaintiff in Fort Worth, Texas; that they were again married at Marietta, Oklahoma, on May 15, 1931, which remarriage was accomplished and performed while plaintiff was bereft of his faculties and incapable of resisting or refusing to enter into such marriage.

"III. That immediately after the remarriage aforesaid, defendant instituted a course of harsh, cruel, and outrageous conduct toward plaintiff; that she studiously did everything within her power to make his existence unbearable; that by her constant nagging and fussing she undermined plaintiff's health; that such studied course of conduct has continued without intermission since immediately after the time of such remarriage.

"IV. That defendant is an habitual drunkard; that on occasions too numerous to specify defendant has returned home in a state of intoxication, and on many occasions has become so intoxicated that she was unable to come home alone, but had to be brought home by others; that she constantly and continually appeared in public places in a state of intoxication and at every opportunity would intentionally embarrass and humiliate plaintiff. That on occasions too numerous to specify, defendant has cursed and abused plaintiff, calling him vile and unprintable names and epithets; that she would strike him with chairs, furniture, kitchen-utensils, bottles, or anything she could seize upon; that defendant is a woman of high and uncontrollable temper; that in fits of anger she has struck plaintiff and seriously injured him; that on many occasions defendant has threatened to kill plaintiff, thereby causing him to be in continual fear of his life.

"V. That on or about the 19th day of March, 1932, while they were living together in the City of Galveston, defendant, without telling plaintiff that she was going, left plaintiff and drove in her automobile to Fort Worth, where she remained for about three months, returning to Galveston about the 15th of June, 1932. That plaintiff gave defendant no cause to abandon and desert him, but left of her own accord; that upon her return to Galveston she continued her course of harsh, cruel, and outrageous conduct toward plaintiff, making his existence unbearable. That plaintiff, because of such conduct, was unable to stay at his home without endangering his life and health. That about the 5th day of July, 1932, defendant, without any provocation whatsoever from plaintiff, threatened to kill plaintiff and attempted to carry out such threat, striking plaintiff on the neck and shoulder with an electric iron; that plaintiff was put in fear for his life by such assault, and was afraid that defendant would kill him; that plaintiff considered it unsafe to remain with defendant and sought refuge at another place.

"VI. That on or about the 5th day of July, 1932, during his absence from his home, defendant gathered together all of his clothing and personal effects and secreted them in order to harass and inconvenience him, because she knew he was without funds to provide himself with other clothing; that though often requested, defendant refused to restore such clothing or to inform him where same had been concealed, until the time hereinafter set out.

"VII. That on or about the 9th day of July, 1932, defendant, without cause, justification, or provocation whatsoever, filed a criminal complaint against plaintiff, charging him with a felony, to-wit, Wife Desertion; that under the existing facts and the laws of the State of Texas, such charge was wholly fictitious, groundless, unfounded, and the filing thereof was a designed and willful attempt on the part of defendant to vex, harass, embarrass, and humiliate plaintiff. That on or about the 13th day of July, 1932, defendant agreed with plaintiff that if he would deliver her automobile to her, which plaintiff then had in his possession, she would return all his clothing and other effects which she had taken, and would dismiss said charge against plaintiff and not refile same; that although plaintiff knew defendant would tell the truth and abide by her agreement only as a last resort, he entered into such agreement with defendant as the only course by and through which he could recover his said clothing and other effects, of which he was in dire need; that defendant had no intention of abiding by such agreement, and, despite having made same, immediately after plaintiff had delivered to her said automobile, as agreed, defendant refiled the identical charge, based on the same fictitious representations, as was the original charge; that the filing of this second charge was within about twenty or thirty minutes after dismissing the original charge; that defendant caused and procured a warrant for the arrest of plaintiff to be issued and caused two police officers of the City of Galveston, both of whom were in full police uniform, to go to a certain hotel in the City of Galveston where she knew plaintiff to be, and there to make his arrest; that such arrest was made and accomplished in the lobby of said hotel and in the presence of a large number of people, thus accomplishing defendant's purpose, to-wit, the humiliation and embarrassment of plaintiff, and thereby bringing him...