Letcher v. Letcher, 14605

• Decision Date: 11 October 1967
• Docket Number: No. 14605,14605
• Citation: 421 S.W.2d 162
• Parties: Raymond LETCHER, Appellant, v. Louise E. LETCHER, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 162

421 S.W.2d 162

Raymond LETCHER, Appellant, v. Louise E. LETCHER, Appellee.

No. 14605.

Court of Civil Appeals of Texas San Antonio.

Oct. 11, 1967.

Reid, Taylor & Murray, Jeff Davis, San Antonio, Sam Darden, Bandera, for appellant.

Pat Maloney, San Antonio, for appellee.

KLINGEMAN, Justice.

Action by Raymond Letcher, the appellant herein, against his wife, Louise E. Letcher, appellee herein, for divorce, partition and division of community property, and for an adjudication by the court that appellant is the owner of an undivided one-half interest in a certain 1451-acre tract of land, and that appellee is holding such one-half interest in trust for appellant. Appellee contested the suit for divorce, but asked the court to adjudge said 1451 acres to be her sole and separate property. The trial court held, as a matter of law, that said 1451-acre tract was the sole and separate property of appellee. Trial of the divorce matter was to a jury, who found that the appellee had not been guilty of excesses, cruel treatment, or outrages toward appellant of such a nature as to render their living together insupportable. Judgment was entered thereon denying the divorce and decreeing said 1451 acres to be the sole and separate property of appellee in fee simple absolute.

Appellant asserts: (a) that there is no evidence to support the jury's finding; (b) that there is insufficient evidence; (c) that the judgment rendered by the court based on the finding of the jury is contrary to the overwhelming preponderance of the evidence and is manifestly wrong and unjust; and (d) that the judgment of the court based upon the finding of the jury is not substantiated by any evidence and is contrary to law and equity.

In order to justify the granting of a divorce in this State the evidence must be full and satisfactory. Art. 4632, Vernon's Ann.Civ .St.; Gentry v. Gentry, 394 S.W.2d 544 (Tex.Civ.App.--Corpus Christi 1965, no writ); Resendez v. Resendez, 282 S.W.2d 318 (Tex.Civ.App.--San Antonio 1955, no writ); Howell v. Howell, 206 S.W.2d 616 (Tex.Civ.App.--Galveston 1947), certified question answered, 147 Tex. 14, 210 S.W.2d 978 (1948); Kreiter v. Kreiter, 137 S.W.2d 184 (Tex.Civ.App.--Galveston 1940, no writ); Hickman v. Hickman, 20 S.W.2d 1073 (Tex.Civ.App.--Waco 1929, no writ).

We have carefully examined all of the testimony in the record. Both appellant and appellee are over seventy years old and had been married for more than forty years at the time suit for divorce was instituted. Appellant testified that appellee constantly nagged and fussed at him, and this made him nervous and affected his health; that appellee did not properly feed him or take care of his clothes; that she made him sleep in a small bedroom by himself; that for many years she had refused sexual relations with him; and he contended that his wife's refusal to reconvey to him an undivided one-half interest in the 1451-acre tract of land constituted cruelty. Appellee's testimony directly contradicted appellant's testimony. She testified that she did not nag or fuss at her husband; that she always provided him with food and took care of his clothes; that his staying in the single bedroom way by his own choice; and that she never refused him to her bed. Appellant's complaints as to some alleged acts of cruelty are supported by disinterested witnesses, but appellee's testimony is also corroborated by a number of disinterested witnesses.

The jury and the trial court had the opportunity to observe the manner, demeanor and deportment of the witnesses at the trial, and it was their function, and not ours, to determine the credibility of the witnesses and the wright to be given their testimony. Mortensen v. Mortensen, 186 S.W.2d 297 (Tex.Civ.App.--San Antonio 1945, no writ); 3 Speer, Law of Marital Rights in Texas § 908, pp. 363--364; 20 Tex.Jur.2d, Divorce and Separation, § 189 (1960).

Where a divorce has been refused by a trial court, the judgment should not be reversed unless it clearly appears from all of the testimony in the record that the trial court plainly erred in refusing the divorce. Hunter v. Hunter, 321 S.W.2d 92 (Tex.Civ.App.--El Paso 1959, no writ); Winters v. Winters, 282 S.W.2d 749 (Tex.Civ.App.--Amarillo 1955, no writ); Caldwell v. Caldwell, 176 S.W.2d 758 (Tex.Civ.App.--Amarillo 1943, no writ); Kreiter v. Kreiter, supra; Buckner v. Buckner, 27 S.W.2d 311 (Tex.Civ.App.--Beaumont 1930, no writ); 20 Tex.Jur.2d, Divorce and Separation, § 188 (1960); Speer, Marital Rights in Texas § 908, p. 363, (4th ed. 1961).

The findings of the jury and the court's judgment thereon denying the divorce are sufficiently supported by the evidence. Appellant's points of error Nos. 24, 25, 26 and 27 are overruled.

Appellant complains of the trial court's action: in failing to acknowledge the jury's communication that they could not arrive at a verdict; in instructing the jury to refer to the charge of the court in answer to their question, when said charge in itself did not have anything within it which would answer the jury's question; in failing to instruct the jury in accordance with Rules 286 and 287, Texas Rules of Civil Procedure, as requested by appellant; in withholding certain exhibits from the jury when they retired to consider their verdict, and from supplying such exhibits to the jury when such fact was called to the court's attention.

It appears from the record that, after the jury retired to consider its verdict, the jury returned into court a note as follows: 'Dates when Raymond Letcher asked for divorce, and also date when Raymond Letcher asked Louise Letcher for deed to be transferred back to him'. The trial court answered such note with a written note to this effect: 'You will be guided by the charge as given to you by the court.' Appellant thereafter moved the court for additional instructions under Rules 286 and 287, to the effect that if the jury disagrees as to the statement of any witness, the jury may, upon applying to the court, have read to them from the court reporter's notes that part of such witness' testimony in dispute. The trial court did not deny such request, but signed a note giving such instructions as requested by appellant, and called the jury back in and told them that he understood they had been unable to reach a verdict, whereupon the foreman answered that they had reached a verdict, which said verdict was received by the court and the jury dismissed. It does not appear from the record that appellant made any objection to the receiving of the verdict.

Appellant asserts that some of the exhibits were not sent to the jury at the time the jury retired, and that appellant requested that all such exhibits be given to the jury, which was refused by the court. The exhibits complained of are stated to be portions of appellee's exhibits, although there is nothing in the record with regard to the exclusion of such exhibits, except in a motion made by appellant after the jury was dismissed. The record does not disclose that appellant made any request with regard to such exhibits prior to the time the jury's verdict was received, that the jury requested such exhibits, or that the court refused to send such exhibits to the jury.

We do not believe the record before us shows any error of the trial court with regard to the requested instructions or the exhibits. Appellant has failed to establish that the matter complained of actually resulted in his prejudice or constituted reversible error. Texas Employers' Insurance Ass'n v. Dennis, 372 S .W.2d 559, 563 (Tex.Civ.App.--Fort Worth 1963, writ ref'd n.r.e.); Greeson v. Texas & Pacific Ry. Co., 310 S.W.2d 615, 619 (Tex.Civ.App .--El Paso 1958, writ ref. n.r.e.); J. H. Robinson Truck Lines v. Ragan, 204 S.W.2d 662 (Tex.Civ.App.--Galveston 1947, writ fef'd n.r.e .). The error, if any, complained of by appellant did not amount to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case. The error, if any, was harmless. Rule 434 and 503, T.R.C.P.; City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860 (1952); Fairchild, Harmless Error, Appellate Procedure in Texas, § 17.6.

Appellant also asserts that the trial court erred: in depriving him of the right of trial by jury; in directing the course of the trial, and in proceeding in such a manner as to lead the jury into thinking there was no legal or moral merit in appellant's cause of action; in submitting an issue of condonation as a result of appellee's trial amendment, the filing of which was objected to by appellant; in failing to set and hear appellant's amended motion for new trial; in refusing to submit his 'Requested Issue No. 6,' thereby failing to grant appellant any compensation or interest in the 1451 acres of land as a result of improvements made by him and his separate property expended to improve the property; in entering a judgment allowing a person to profit as a result of fraud and bad faith practiced by one upon another; and in allowing reference to be made to the jury that title to the property was not an issue in the case. We do not find any merit in these points of error and they are overruled.

Appellant's point of error No. 23 is: 'The trial court erred in determining title to real property in a divorce action when the divorce was denied by the jury.' In this connection, see Speer, Marital Rights in Texas, § 835, p. 175, and 20 Tex.Jur.2d, Divorce and Separation, § 203, wherein it is stated that the power of a court to determine the property rights of the parties is contingent upon the granting of a divorce. A careful study of the cases cited in support of this statement ¹ reveals most of such cases were suits for divorce and for partition of community property in connection therewith, and the court held that when the divorce was denied, the court was without power to adjudicate the community property right of ...