Mortensen v. Mortensen, 11475.

• Decision Date: 14 February 1945
• Docket Number: No. 11475.,11475.
• Citation: 186 S.W.2d 297
• Parties: MORTENSEN v. MORTENSEN.
• Court: Texas Court of Appeals

186 S.W.2d 297

MORTENSEN v. MORTENSEN.

No. 11475.

Court of Civil Appeals of Texas. San Antonio.

February 14, 1945.

Rehearing Denied March 21, 1945.

Appeal from District Court, Hidalgo County; W. B. Blalock, Judge.

Suit by Gloria Elizabeth Mortensen against Jens Herman Mortensen for a divorce. From a judgment for plaintiff, the defendant appeals.

Affirmed.

J. F. Carl, of Edinburg, for appellant.

Chas. E. Thompson, of McAllen for appellee.

NORVELL, Justice.

This is a divorce case. Trial was to the court without the intervention of a jury. Judgment was for the wife, Gloria Elizabeth Mortensen, awarding her a divorce together with the custody of a minor child. A division of the community property was also effected by the judgment.

The husband, Jens Herman Mortensen, brings the case here. His primary contention is that the evidence is insufficient to support the decree and that it does not meet the statutory requirement of being full and satisfactory. He also contends that the trial court was without jurisdiction to try the case and that the part of the decree relating to a division of their community property is unauthorized by law.

As we understand the authorities peculiarly applicable to divorce cases, a decree dissolving a marriage must be supported by evidence which is not only "sufficient" but also "full and satisfactory." The terms "sufficient evidence" and "insufficient evidence" are generally used in discussing matters within the fact jurisdiction of a Court of Civil Appeals. Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982.

The rules used in determining the sufficiency of the evidence in the ordinary type of civil action are likewise applicable to divorce cases, for, obviously, "insufficient evidence" can not be "clear and satisfactory evidence." We first consider the question of the sufficiency of the evidence.

The testimony in this case is highly conflicting and consists of charges and counter charges made by each litigant against the other. While no findings of fact and conclusions of law were requested and filed in accordance with Rule 296, Texas Rules of Civil Procedure, certain findings were recited in the decree, among them being the following:

"The Court heard at length the facts presented by both parties and the argument of counsel for each party, and is accordingly of the opinion and finds as follows:

"1. That the law and the facts are with the plaintiff, and that she is entitled to the relief sought.

"2. That defendant's attacks upon the character and good name of plaintiff are unfounded and are inconsistent with his professed affection, respect and esteem for her.

"3. That defendant's cruelty to plaintiff has been such as to render their continued living together insupportable.

"4. That at the time of their separation there existed certain admitted community assets, and that since that time, and while the major part of such assets were in the possession and custody of defendant, he has wilfully dissipated a large portion of such community assets, the portion dissipated being considerably in excess of the amount of such community assets now admitted by defendant to be in existence. The court further finds that the remaining community property is in the possession of the defendant, and should be awarded to plaintiff."

In the recent case of Glenn v. Glenn, 183 S.W.2d 231, the Eastland Court of Civil Appeals, in discussing the contention that the evidence was insufficient, states the following rule as applicable to a divorce case in which the testimony was conflicting, viz.: "It is a well settled rule that it is for the jury or the court (as in this case) to decide issues of fact upon conflicting evidence or such evidence which is susceptible to diverse inferences. 41 T. J. 934, sec. 164; 3 T. J., p. 1088, sec. 764. The least that can be said of the evidence in this case is that it is conflicting, presenting questions of fact for the determination of the trial court, since the case was tried without a jury. 19 T. J., p. 682, sec. 254. Under such circumstances it is elementary that the trier of facts has the exclusive function of determining the credibility of the witnesses and the weight to be given to their testimony. 17 T.J., p. 889, sec. 403. Further, a reviewing court will not disturb the verdict of the jury or the findings of the trial court (when trial is without a jury) where there is some evidence to support the same, viewing the evidence in the light most favorable to the successful party and indulging every legitimate conclusion that is favorable to him."

Tested by the rule above stated, we are of the opinion that the decree and the findings therein contained have support in the evidence. We shall briefly review the testimony relied upon to support the decree. As will be noted, this evidence in vital particulars consists of the testimony of appellee, the plaintiff below.

Appellant and appellee were married in Hidalgo County, Texas, on July 17, 1941. At the time of the marriage Jens Mortensen was about twenty-three years of age and his wife was eighteen years old. A daughter, Barbara Ann, was born to this marriage in 1942. Some time after the marriage, the Mortensens moved from Hidalgo County to Port Arthur, Texas, where the husband was employed by a ship building firm.

According to Mrs. Mortensen's testimony, she left Port Arthur on November 18, 1943, and returned to her parents' home in McAllen, with the intention of not again living with her husband. The separation was preceded by numerous quarrels and disagreements. She filed suit for divorce in January, 1944, but this suit was abated upon the district judge's holding that the Mortensens had acquired a residence in Port Arthur and consequently Gloria Mortensen had not resided in Hidalgo County for six months next preceding the filing of the petition. On May 30, 1944, appellee filed the present suit which was heard by the court below on the 19th of July, 1944. It appears that Mrs. Mortensen has resided in Hidalgo County at the home of her parents continuously since November, 1943, and has been employed at Moore Field, an Army Air Force installation in Hidalgo County.

Appellee testified that she never at any time intended to return to her husband after she left him in November, 1943. She did, however, write certain letters to her husband which, while recognizing that they had had certain disagreements, might be construed as evidencing a willingness to resume marital relationships. She explains the writing of these letters by saying that she did not wish to have trouble with her husband at that particular time as her father was seriously ill of heart disease.

However that may be, appellant did come to Hidalgo County in December of 1943 and saw his wife upon certain occasions. Much of the controversy disclosed by the record revolves around these occasions.

Relating to the grounds for divorce alleged in the petition, Mrs. Mortensen testified that her husband was "overbearing" and "insanely jealous," that he had used "vile language" toward her and said "things I would not repeat in the courtroom," and "accused her of everything" in the way of bad conduct.

She further testified that:

"* * * at one time I failed to keep a laundry list, we were living over at Port Arthur and he lacked one or two shirts and he cursed and called me vile names and asked for the laundry list and I told him I had forgotten to keep a laundry list, and such things as that would happen, I just forgot to keep the laundry list and they lost one or two of his shirts. * * *

"On several occasions I have been turned over and spanked in the presence of his family, and I have had dresses torn off of me and thrown in the fire by him in front of his family. One time about two o'clock in the morning he took me out on a lonely road between San Juan and Pharr and slapped me good because I said I would not go back to Port Arthur, and when we went home he said he would not let me get out of the car because I said I was not going back to Port Arthur with him, and he tried to choke me and I screamed for my mother but she did not hear me."

While it seems, from Mrs. Mortensen's testimony, that some of the actions of her husband of which she complains occurred prior to the separation from her husband in November, 1943, the slapping incident occurred in December, 1943. The dress tearing incident likewise took place in December, 1943. Mrs. Mortensen testified that when she refused to return with her husband to Port Arthur, "he tore the dress off in the presence of his mother and threw it into the fire."

Another occurrence related by Mrs. Mortensen was as follows: "This was some time after he came home before Christmas. I was trying to keep things as quiet as possible until after Christmas and this particular afternoon my father was lying on the couch asleep and Jens said, he got mad and fussed around there and he went back in the back closet and took the rifle and put it in the car and he said he was going to kill me or anybody I went with and he asked where the bullets were and I told him I wouldn't tell him if I knew, and he went through my mother's dresser but he didn't find any or he lost his nerve or something because he brought it back. I threatened to tell my father and I guess that scared him."

Appellee testified that she was afraid of her husband from a physical standpoint; that she had fear of physical violence from past experiences—"the time he tried to choke me in the car, he threatened to kill me and said I would never be free of him, never."

Despite the charges of indiscreet conduct leveled against her upon the trial of this case, Mrs. Mortensen testified that she had not been guilty of misconduct as charged and had not provoked the verbal abuse or physical assaults to which she had been subjected by her husband.

As to the question of jurisdiction, we hold that the trial court's finding that it had jurisdiction of the parties...