Meyer v. Meyer, 11027

• Decision Date: 31 October 1962
• Docket Number: No. 11027,11027
• Citation: 361 S.W.2d 935
• Parties: J. K. MEYER, Appellant, v. Alice M. MEYER, Appellee.
• Court: Texas Court of Appeals

Page 935

361 S.W.2d 935

J. K. MEYER, Appellant, v. Alice M. MEYER, Appellee.

No. 11027.

Court of Civil Appeals of Texas, Austin.

Oct. 31, 1962.

Rehearing Denied Nov. 21, 1962.

DeShazo & Hyde, Dallas, for appellant.

Storey, Armstrong & Steger, Donald A. Swanson, Jr., Donald W. Jackson, Dallas, for appellee.

RICHARDS, Justice.

Alice M. Meyer, appellee, brought suit for divorce in the Domestic Relations Court No. 1, Dallas County, from her husband J. K. Meyer, appellant, upon the grounds of mental and physical cruelty under the provisions of Art. 4629, Subd. 1, Vernon's Annotated Civil Statutes, and for the custody of their four minor male children. After trial without a jury the Trial Court granted a divorce in favor of appellee and awarded the custody of the two younger children to their mother and the custody of the two older children to their father. Appellant's amended motion for New Trial having been overruled, this appeal was perfected.

For his 1st and 2nd points of error appellant contends that the Trial Court erred in holding that appellee had been a resident of Texas for more than one year and had resided in Dallas County for more than six months immediately preceding the filing of her original petition on May 24, 1961 and her first amended original petition on July 5, 1961 within the meaning of Art. 4631, V.A.C.S.

Appellee filed her original petition for divorce in the Domestic Relations Court of Dallas County, Texas, on May 24, 1961 and thereafter filed her first amended original petition on July 5, 1961, amplifying the allegations in the original petition.

Appellee testified that her residence and domicile and also that of her husband had been in Garland, Texas, for three years preceding the filing of the original petition, although that at the time of the trial she was temporarily residing in Kirkwood, Missouri; that she had left her residence in Garland about May 7, 1961 and moved to Kirkwood, Missouri, to stay with her parents temporarily because she was afraid of her husband who had attempted to commit her to a mental institution. Appellee consistently testified that the stay with her parents at Kirkwood was temporary only.

Her testimony as to her residential qualifications were corroborated by the testimony of her husband who stated that he had been a minister of a church in Garland, Texas, for approximately three years immediately preceding the filing of the divorce action, his resignation from that church having been tendered subsequent to their separation and becoming effective July 31, 1961; and that on June 3, 1961 she came home to Garland to take the boys to Kirkwood on a visit. In addition, the residential qualifications of appellee were never raised or controverted by appellant by any pleadings nor did appellant offer testimony to controvert appellee's testimony as to her residential qualifications, such question being raised for the first time in appellant's amended motion for new trial.

Art. 4631, V.A.C.S., provides that no divorce suit shall be maintained in the courts of Texas unless the petitioner shall at the time of exhibiting the petition be an actual bona fide resident of Texas for a period of twelve months and shall have resided in the county where suit is filed for six months next preceding the date of filing of the petition. The provisions of this statute are not jurisdictional but merely provide the necessary residential qualifications for bringing an action for divorce. Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 79, 89 A.L.R. 1198.

In its judgment the Trial Court found that the residential qualifications of Art. 4631, V.A.C.S., had been complied with. Since residence is a qualification and a fact issue to be determined by the Trial Court, its findings will not be disturbed on appeal unless there is a clear abuse of discretion. Vinson v. Vinson, Tex.Civ.App., 340 S.W.2d 562, 563 (N.W.H.); Batte v. Batte, Tex.Civ.App., 349 S.W.2d 112, 113 (N.W.H.). It is well settled that temporary absence from the county and state of residence prior to the filing of an action for divorce does not destroy the residential qualifications required by Art. 4631. Haymond v. Haymond, 74 Tex. 414, 12 S.W. 90, 92; Bell v. Bell, Tex.Civ.App., 135 S.W.2d 546, 547 (N.W.H.); Black v. Black, Tex.Civ.App., 185 S.W.2d 476, 478 (N.W.H.).

In addition, appellee derived her domicile in Dallas County, Texas, through the domicile of her husband in Garland, Texas, up to July 31, 1961, Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, 812, since there is no evidence in the record that appellee acted upon any intent to create a separate domicile prior to July 5 1961 when her first amended petition was filed. Residential qualifications may be met either at the time of the filing of the original or an amended petition.

Since the Trial Court was the sole judge of the credibility of the testimony of appellee upon the question of residential qualification, which was uncontradicted, and is supported by full, clear and satisfactory evidence, such finding will not be disturbed. Padgett v. Padgett, Tex.Civ.App., 341 S.W.2d 470 (N.W.H.). Appellant's 1st and 2nd points of error are overruled.

Appellant's 3rd point of error is directed to the error of the Trial Court in granting a divorce to appellee because of the lack of supporting evidence of statutory grounds provided in Art. 4629, Subd. 1, V.A.C.S. In her first amended petition and first supplemental petition appellee alleged many specific acts of harsh and cruel treatment toward her by her husband of long duration and upon the trial gave affirmative testimony in support of these allegations. The testimony of appellant was directly contradictory to or in explanation or mitigation of the acts of cruel treatment testified to by appellee.

Some of the acts of appellant's cruel and harsh treatment of appellee which were alleged and testified to by her are as follows: that during her third pregnancy she requested her husband to stop spanking one of the children and that he turned on her and hit her in the stomach with his fist as a result of which one of the twins which she delivered died; that in March, 1961 her husband knocked her to the floor and as a result thereof she was hospitalized for a disc condition and put in traction for three weeks before an operation was performed to relieve the condition; that during April, 1961 while she was recovering from the operation appellant called the pharmacy and gave instructions that his wife was not to have any more pills for her post operative pain; that in February, 1961 while she was asleep her husband shook her and slapped her and called her 'you contemptible female'; that her husband had humiliated her in the presence of her children by bringing three of the boys in the living room and pointing to her and stating 'look at that miserable creature, that is your mother' and that her husband had for a long period of time stated that his wife needed psychiatric care, charging that she was crazy, neurotic and queer and that she wished to destroy him and she had ruined his career.

It would serve no useful purpose to fully detail and discuss the voluminous testimony of both appellee and appellant as to the various acts of cruel and harsh treatment above referred to. The testimony of appellee as revealed by the statement of facts shows a long course of cruel treatment by appellant toward appellee, none of which was condoned by appellee and which instances of harsh and cruel treatment individually and taken as a whole, in our opinion, constitute such cruel treatment, both physical and mental as to render their further living insupportable and are grounds for divorce within the meaning of Art. ,4629, Subd. 1, V.A.C.S. Guerra v. Guerra, Tex.Civ.App., 327 S.W.2d 625, 628 (N.W.H.); Ingham v. Ingham, Tex.Civ.App., 240 S.W.2d 409, 411, Mand. overruled.

The Trial Court having found in its judgment that the material allegations contained in appellee's amended petition and supplemental petition were supported by the evidence and were true, and since the Trial Court is the sole judge of the credibility of the witnesses where the testimony of one witness is directly controverted by another witness, the presumption in favor of the Trial Court's decision should be accepted by this Court. Mortensen v. Mortensen, Tex.Civ.App., 186 S.W.2d 297, 305 (N.W.H.).

While it is the duty of this Court to determine that the judgment of the Trial Court was rendered upon 'full...