Marr v. Marr, 6182.

• Decision Date: 25 October 1945
• Docket Number: No. 6182.,6182.
• Citation: 191 S.W.2d 512
• Parties: MARR v. MARR.
• Court: Texas Court of Appeals

191 S.W.2d 512

MARR v. MARR.

No. 6182.

Court of Civil Appeals of Texas. Texarkana.

October 25, 1945.

Appeal from District Court, Camp County; Sam Williams, Judge.

Suit by W. W. Marr against Eula Mae Marr for divorce and custody of minor child, wherein defendant filed a cross-action for a divorce and custody of the child. From a judgment granting defendant a divorce and awarding to her the custody in the main of their minor son, plaintiff appeals.

Judgment affirmed.

W. Clyde Hull, of Pittsburg, and Sidney E. Dawson and W. L. Wray, both of Dallas, for appellant.

Florence, Florence & Meredith, of Gilmer, for appellee.

HALL, Chief Justice.

This is a suit for divorce and for custody of a minor child, instituted by appellant against appellee on the ground of cruel treatment. Appellee answered with general denial and by cross-action alleged cruel treatment against appellant and prayed for a divorce and custody of their minor son.

The cause was tried to a jury upon special issues. In answer to special issues one and two the jury found that Mrs. Marr had been guilty of excesses, cruel treatment and outrages toward the appellant, W. W. Marr, and that such conduct on her part rendered their future living together altogether insupportable. In answer to special issues three and four the jury made similar findings in favor of appellee against W. W. Marr, appellant. In answer to issue "C" the jury found that it would not be to the best interest of the minor to award his custody to appellee, Mrs. Marr.

Appellant filed a motion praying that no judgment be entered in the case for the reason that the jury had found each to be guilty of cruel treatment toward the other rendering their future living together insupportable. This motion was overruled. Appellee moved for judgment and prayed that the court disregard the jury's answers to special issues one, two and "C" because there is no evidence in the record supporting them. This motion was granted and judgment was entered granting appellee a divorce from appellant and awarding to her the custody, in the main, of their minor son. This action by the trial court forms the basis of this appeal.

It is appellant's contention that the finding by the jury that each party to the suit was guilty of cruel treatment toward the other makes applicable the doctrine of recrimination, barring both parties from a divorce. This rule of law is applied in most jurisdictions. In Texas, Arkansas, Pennsylvania, and Washington, however, the rule is relaxed to the extent that comparative rectitude is recognized. In Beck v. Beck, 63 Tex. 34, it is stated: "The cruelty must not approach mutuality, nor be exercised sometimes by the one, and sometimes by the other, though differing somewhat in degree. If the recrimination on the part of the injured spouse is insignificant compared with the great provocation on the part of the other, the divorce may be granted", citing Jones v. Jones, 60 Tex. 451; Hale v. Hale, 47 Tex. 336, 26 Am.Rep. 294; Staples v. Staples, Tex.Civ.App., 136 S.W. 120. (Italics ours.) In the case of Flagg v. Flagg, 192 Wash. 679, 74 P.2d 189, 191, by the Supreme Court of Washington, it is stated: "It must be conceded, from the standpoint of fact, that appellant did not make out a very strong case of cruelty on the part of respondent. While we are not prepared to say that the court's finding in that respect is not supported by the evidence, we can, and do, say that appellant, like respondent, is not wholly without fault. The situation, according to the evidence as a whole, is one where both parties are mutually responsible for a condition which has resulted in an estrangement and made it impossible for them longer to live together as husband and wife. We are of the opinion that both parties have been guilty of cruelty within the meaning of the statute, Rem.Rev.Stat. 982, and that both, therefore, are entitled to a divorce."

In Dearth v. Dearth, 141 Pa.Super. 344, 15 A.2d 37, 41, by the Supreme Court of Pennsylvania, it is stated: "We quote from the opinion by Judge Orlady in the case of Breene v. Breene, 76 Pa.Super. 568, 573, which correctly sets forth the principles to guide us in the disposition of this and similar cases: `Assuming that each party has offended against the established proprieties that are expected in the marital relation, — even under such unfortunate conditions there must be some point, beyond which human indulgence cannot be expected to submit, and resort to the courts may rightly be had to sever a relation no longer endurable, and which makes a further living together intolerable and life burdensome. To hold that...