McAfee v. McAfee, 7499

• Decision Date: 25 June 1963
• Docket Number: No. 7499,7499
• Citation: McAfee v. McAfee, 369 S.W.2d 669 (Tex. Ct. App. 1963)
• Parties: Leola McAFEE, Appellant, v. L. F. McAFEE, Appellee.
• Court: Texas Civil Court of Appeals

Page 669

369 S.W.2d 669

Leola McAFEE, Appellant, v. L. F. McAFEE, Appellee.

No. 7499.

Court of Civil Appeals of Texas, Texarkana.

June 25, 1963.

Harkness & Friedman, Texarkana, Robert F. Salmon, Linden, for appellant.

Bun L. Hutchinson, Texarkana, for appellee.

FANNING, Justice.

L. F. McAfee sued his wife, Leola McAfee, for a divorce upon the ground of cruel treatment and sought a division of their community property. Trial was before the court without a jury, and judgment was rendered granting the plaintiff-appellee a divorce and the property rights of the parties were also adjudicated. Leola McAfee has appealed.

Appellant on appeal contends that the trial court erred in granting a divorce to appellee as there was 'no evidence' and 'insufficient evidence' to warrant the granting of the divorce to appellee.

Cruel treatment, within the meaning of Art. 4629, Vernon's Ann.Civ.St., is a relative term of variable degrees, and may consist of innumerable acts or combinations of misconduct. The painful effect of such treatment, whether physical or mental, or both, as well as the degree of intensity thereof, depends upon the nature, extent, and duration of the overt acts of which it consists, and the circumstances under which such acts are committed, and every case of such character must be determined by its own peculiar facts. Mobley v. Mobley, Tex.Civ.App., 263 S.W.2d 794. While the overt acts constituting legal cruelty must be established by full, clear and satisfactory evidence before a divorce can be granted upon the ground of cruel treatment, a determination as to the quantum and weight of the evidence necessary to meet this test involves the sound exercise of broad discretionary powers. Mobley v. Mobley, supra; Eatman v. Eatman, 75 Tex. 473, 12 S.W. 1107; Grisham v. Grisham, Tex.Civ.App., 255 S.W.2d 891.

Plaintiff and defendant were married in 1936, and lived together as husband and wife until December 17, 1960, at which time they were permanently separated, and have not since lived together as husband and wife. No children were born to their marriage.

Plaintiff was principal of a school, and his wife was also a teacher in said school until May, 1960, when she was released from this position because of the trouble she was causing plaintiff and other members of the faculty, according to plaintiff's testimony. Since that time appellant has been a teacher in Chicago, Illinois.

There was testimony from plaintiff to the following effect: In October, 1958, plaintiff was informed by his doctor that he had a diabetic condition, and that defendant wrongfully accused plaintiff of being insane, further harassed plaintiff by telling him he was insane and wrongfully accused him of having illicit reationships with his female faculty members and with his female students, and that such false accusations of insanity and infidelity and various displays of jealousy by defendant interfered with plaintiff's work as a principal in his...