Mobley v. Mobley, 3147

• Decision Date: 21 December 1953
• Docket Number: No. 3147,3147
• Citation: Mobley v. Mobley, 263 S.W.2d 794 (Tex. Ct. App. 1953)
• Parties: MOBLEY v. MOBLEY.
• Court: Texas Civil Court of Appeals

Page 794

263 S.W.2d 794

MOBLEY v. MOBLEY.

No. 3147.

Court of Civil Appeals of Texas, Waco.

Dec. 21, 1953.

Rehearing Denied Jan. 14, 1954.

W. C. Davis, Bryan, for appellant.

Jno. M. Lawrence III, Bryan, for appellee.

McDONALD, Chief Justice.

This is a suit brought by Leona Mobley, appellee, against Jim Mobley, appellant, for a divorce on the grounds of cruel treatment, custody of 2 minor children, property division, and attorney's fees. Trial was before the Court without a jury, which granted appellee a divorce, and other relief prayed for. Appellant seeks a reversal on the ground that appellee failed to establish her right to a divorce by clear and convincing proof, and contends that the evidence adduced in the case was not 'full and satisfactory' as to entitle appellee to a divorce.

Article 4629 Vernon's Ann.Tex.Civ.Stats. authorizes a divorce where either party to the marriage is guilty of excesses, cruel treatment or outrages toward the other, 'if such ill treatment is of such a nature as to render their living together insupportable.' Cruel treatment, within the meaning of this statute is a relative term of variable degrees. It may consist of innumerable acts or combinations of misconduct. The painful effect of such treatment, whether physical or mental, 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. Every case of this character must be determined by its own peculiar facts. It is impossible to lay down any precise rule by which to decide, under a given state of facts, whether legal cruelty does or does not exist. While it is well settled that the overt acts constituting legal cruelty must be established by full, clear, and satisfactory evidence before a divorce can be properly granted upon that ground a determination as to the quantum and weight of the evidence necessary to meet this test involved the sound exercise of broad discretionary powers. Eatman v. Eatman, 75 Tex. 473, 12 S.W. 1107; Grisham v. Grisham, Tex.Civ.App., 255 S.W.2d 891.

A review of the evidence in the case at bar reflects that liquor had been a serious problem with the parties most of their married life; that appellee had moved from her home in Bryan to a Brazos bottom farm on the strength of appellant's promise to give up drink, which promise was promptly broken; that the appellant had told appellee on repeated occasions that he...