Marriage of Earin, In re, 16448

• Decision Date: 27 February 1975
• Docket Number: No. 16448,16448
• Citation: 519 S.W.2d 892
• Parties: In the Matter of the MARRIAGE OF Eugene F. EARIN and Jimmie Lee Earin. (1st Dist.)
• Court: Texas Court of Appeals

Page 892

519 S.W.2d 892

In the Matter of the MARRIAGE OF Eugene F. EARIN and Jimmie Lee Earin.

No. 16448.

Court of Civil Appeals of Texas Houston (1st Dist.).

Feb. 27, 1975.

Sam Bass, Jr., Freeport, for appellant.

PEDEN, Justice.

Appeal from the dismissal of a divorce action for want of jurisdiction. The appellant is an inmate of the Texas Department of Corrections and had been confined in the Retrieve unit in Brazoria County for more than a year before filing his divorce petition. Appellee resides in Louisiana.

The appellant testified that he had resided in Bexar County before his incarceration, intended to return there upon his release and has never intended to make Brazoria County his residence. For this reason the trial court dismissed this case on the ground that the residency requirement of Section 3.21 of the Vernon's Ann.Texas Family Code was not met. Section 3.21 was amended in 1973 and now states:

'No suit for divorce may be maintained unless at the time suit is filed the petitioner or the respondent has been a domiciliary of this state for the preceding six-month period and a resident of the county in which the suit is filed for the preceding ninety-day period.'

Therwhanger v. Therwhanger, 175 S.W.2d 704, 707 (Tex.Civ.App.1943, no writ), held that the term 'resident' used in the statute (then Article 4631, Vernon's Ann. Texas Civil Statutes) means a bona fide inhabitant of the county where the suit was filed. See also Hagle v . Leeder, 442 S.W.2d 908 (Tex.Civ.App.1969, no writ) and Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363. Randle v. Randle, 178 S.W.2d 570, 572 (Tex.Civ.App.1944, no writ), was a suit in which the plaintiff testified that he intended to go back to Tarrant County to live as soon as he could do so. We held that he was not authorized to bring a divorce action in Galveston County, where he was then stationed, pointing out:

'. . . the purpose and intent of our quoted statute is to require more than a mere temporary abiding of one in a county before empowering him to maintain a suit for divorce there, in that it plainly contemplated that his prescribed six months' prior residence there should be accompanied by his good faith and intention then to remain and permanently and definitely to make that county his home; . . ..' (citations omitted).

It is clear from the appellant's testimony that he has had no intention and does not have any present intention to make Brazoria County his residence. We do not agree with his position that the statutory provision is no longer mandatory because of its modification from 'No divorce Shall be maintained unless . . .' to 'No divorce May be maintained unless . . .'...