Kollenborn v. Kollenborn, 15566

• Decision Date: 26 November 1954
• Docket Number: No. 15566,15566
• Citation: Kollenborn v. Kollenborn, 273 S.W.2d 660 (Tex. Ct. App. 1954)
• Parties: Byron G. KOLLENBORN, Appellant, v. Aky KOLLENBORN, Appellee.
• Court: Texas Civil Court of Appeals

Page 660

273 S.W.2d 660

Byron G. KOLLENBORN, Appellant, v. Aky KOLLENBORN, Appellee.

No. 15566.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 26, 1954.

Rehearing Denied Dec. 31, 1954.

James L. Mitchell, Dallas, for appellant.

Dee Brown Walker, Dallas, for appellee.

RENFRO, Justice.

Appellant Byron G. Kollenborn brought suit against appellee Kay Kollenborn for a divorce and custody of twin boys eighteen months of age, and for division of the community property. Appellee filed a cross-action praying for a divorce and custody of the children, temporary child support and alimony, and for division of the property.

Trial was to the court on January 25, 1954, resulting in a judgment of divorce in favor of appellee on her cross-action; an award of custody of the children to her; an order that appellant pay the sum of $150 per month for support of the above children until they reached their eighteenth birthday; and, in the event of appeal, appellant should pay appellee the sum of $400 a month as temporary child support and alimony pending final disposition of the cause.

By points one and three, appellant alleges error on the part of the court in granting divorce to appellee and in denying divorce to appellant, because he alleges the evidence was insufficient to establish grounds for appellee and clearly established grounds for appellant.

Both parties introduced a great amount of testimony detailing the conduct of each toward the other during their marital relationship. Appellee's testimony charges appellant with acts and conduct toward her ranging from mildly reprehensible to revolting and repulsive. No good purpose would be served in detailing her testimony. We merely quote a part of the trial court's findings, wherein he found 'that the Cross-Defendant during the marriage of the parties often struck and beat the Cross-Plaintiff, chased her up and down the streets near their home, struck her in public and did on December 24, 1952 strike her on a public street near the home of the parties, tore her coat from her body and abused her, causing her to flee from her home, and Cross-Defendant committed acts of a personal nature toward the Cross-Plaintiff, which greatly upset her and required that she have hospitalization and medical attention, but at the trial of this case, Cross-Plaintiff is fully recovered from her illness and is a person of sound mind.'

We overruled the points of error.

Points seven and nine allege error on the part of the court in allowing certain testimony because there were no pleadings to support same.

Appellee, in addition to pleading certain specific acts of cruelty, etc., plead the statutory grounds for divorce under subdivision 1 of Article 4629, R.C.S., Vernon's Ann.Civ.St. Appellant did not except to appellee's cross-action. The Supreme Court, in McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459, held that such an allegation in the absence of an exception is sufficient and is a sufficient allegation of a fact to authorize the district court to hear the evidence and on which a valid decree of divorce may be awarded.

The McCullough case has been followed in Renfro v. Renfro, Tex.Civ.App., 80 S.W.2d 348; Curry v. Curry, Tex.Civ.App., 122 S.W.2d 677; Green v. Green, Tex.Civ.App., 45 S.W.2d 331; Sloan v. Sloan, Tex.Civ.App., 228 S.W.2d 294; Radford v. Radford, Tex.Civ.App., 42 S.W.2d 1060; Skop v. Skop, Tex.Civ.App., 201 S.W.2d 77; Davis v. Davis, Tex.Civ.App., 108 S.W.2d 681; Burks v. Burks, Tex.Civ.App., 252 S.W.2d 226, and numerous other cases.

The points of error are overruled.

Appellant contends the court erred in awarding custody of the children to appellee, arguing that the undisputed evidence shows that awarding custody to appellee was not for the best interest of the children.

The evidence shows that prior to May, 1953, appellee was excessively addicted to the use of alcohol.

Appellee admitted that she did drink but denied that she was an excessive drinker. The witness, Dr. Hamilton, testified he first saw appellee as a patient in March 1951; at that time she was suffering from asthmatic bronchitis; in addition, he treated her for colds and hemorrhoids and a nervous condition until the middle of May, 1954, at which time he advised her to have psychiatric treatment; he did not consider her of unsound mind. He testified that asthmatics are almost always intensified if there is an emotional disturbance as well. It was his opinion that she should not have the care and custody of the children as of the time he last saw her, which was in May, 1953; that at the time of the trial, although he had not examined her, she looked well and that if she did not at the time of the trial have asthma her condition had improved to that extent; he declined to testify whether she was or was not in position to care for the children at the time of the trial.

Dr. Burkett, called by appellant as a witness, testified that appellee was admitted to Timberlawn Sanitarium under his professional care on the 21st of May, 1953, and remained as an in-patient until June 19, 1953, when she was discharged against his advice. He testified she did make some superficial response but at the time she left the hospital she had not responded as much as the average patient in an acute illness responds. He testified that her illness was a type paranoid schizophrenia, that such illness will get better and get worse, that the one thing predictable about schizophrenia is its unpredictability. He, too, refused to say that she was insane. He had not seen her since June 1953. He testified that if she was able to drive approximately one hundred miles from the place where she was staying back and forth for treatment, had cared for the twins as a mother would and had so continued down to the date of the trial that her condition had probably improved. He was of the opinion that as of the time he last saw her she was not a proper person to have custody of the children.

After leaving the Timberlawn Sanitarium, appellee went immediately to Mayo Clinic at Rochester for a ten day period. From Mayo's, she was to Glenwood Hills Hospital in Minnesota, about one hundred miles from her parents' home, where she stayed two weeks and where she was given a 'rest' treatment. She was released from Glenwood Hills Hospital on July 14th. She continued to see a doctor until the latter part of November or early part of December, when she was released as a patient; in her words, 'treatment completed.'

The testimony of appellee and her mother shows that appellee, since her release from the Glenwood Hills Hospital, has been caring for the children, with some help from her mother. Appellee is living with her parents on the farm where her father was born. Her parents express a willingness to take the children into their home. The record discloses they are people of integrity, both of whom...