Miller v. Miller, 13227
| Decision Date | 02 October 1957 |
| Docket Number | No. 13227,13227 |
| Citation | 306 S.W.2d 175 |
| Parties | Willie Joyce MILLER, Appellant, v. Allen MILLER, Jr., Appellee. |
| Court | Texas Court of Appeals |
Kelly, Hunt & Cullen, Victoria, for appellant.
Oliver W. Johnson, San Antonio, for appellee.
This appeal is from a judgment granting appellee a divorce, upon a trial to the court without a jury. Appellant predicates the appeal upon three points, first, that appellee failed to prove the mandatory domicile and residence qualifications required by law, and second and third, that appellee failed to establish, by full and satisfactory evidence, the allegation either of adultery or abandonment, the grounds upon which the divorce was sought.
Neither party personally appeared in court, both parties being in the State of California. The appellee testified by deposition taken upon written interrogatories. The appellant did not testify, although she contested the case.
The evidence shows that on December 16, 1951, appellee was inducted into the armed forces of the United States; that at the time he entered the armed forces he resided in Victoria County, Texas; that he is still in the armed froces and has not acquired another permanent residence. His removal from Victoria County, Texas, being involuntary as a member of the armed forces, he retains his residence and domicile as it existed at the time he entered the service. Klingler v. Klingler, Tex.Civ.App., 254 S.W.2d 817, and cases cited; 15 Tex.Jur. p. 716. Hence we hold that the suit can be maintained by appellee in Victoria County, Texas. Appellant's first point is overruled.
We now determine whether appellee has proved the grounds for divorce by the character of evidence required by statute. Appellee testified that right after his marriage to appellant, which occurred on May 16, 1952, he informed her that his unit would be in maneuvers, training for combat, for twenty-one days, after which they would be processed for over-seas duty. Appellant then stated that she could not wait for his return from over-seas, and for him to forget her. He further testified that about two weeks later she came to the base where he was stationed, that a man came with her, and that this man was embracing her while she was talking to appellee. That he sailed for over-seas on June 17, 1952, and on February 15, 1954, after his return to the States, he saw his wife, but had not lived with her, and said, 'Nor have either of us made any efforts to go back...
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