Perry v. Perry, 5640.

• Decision Date: 29 May 1944
• Docket Number: No. 5640.,5640.
• Citation: Perry v. Perry, 181 S.W.2d 133 (Tex. App. 1944)
• Parties: PERRY v. PERRY.
• Court: Texas Court of Appeals

181 S.W.2d 133

PERRY v.PERRY.

No. 5640.

Court of Civil Appeals of Texas. Amarillo.

May 29, 1944.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Suit for divorce by D. B. Perry against Lillian Perry.From a judgment dismissing the suit, the plaintiff appeals.

Affirmed.

Riley Strickland, of Amarillo, for appellant.

George S. McCarthy, of Amarillo, for appellee.

PITTS, Chief Justice.

Appellant, D. B. Perry, filed suit November 16, 1943, against appellee, Lillian Perry, for a divorce, alleging that appellee had been untrue to him and thus violated her marriage vows.Appellant further alleged that he was an actual bona fide inhabitant of the State of Texas and had been such for a period of more than twelve months next immediately preceding exhibiting his petition and had resided in Potter County for more than six months next preceding the filing of his petition; that he and appellee were married on February 8, 1941 and lived together until a few months previous to filing suit; that they had no community property; that one child, then two months old, was born to the marriage and that the child lived with appellee in Seminole County, Georgia.

Appellee answered with a general exception, general denial and asked for alimony pending the outcome of the suit and for custody of and support for the child in the event a divorce be granted.

The trial court heard the case without a jury and rendered judgment on April 4, 1944, dismissing the case from the docket, assigning as a reason for the same that appellant had not satisfied the residence requirements of article 4631, Revised Civil Statutes of 1925, Vernon's Ann.Civ.St. art. 4631.From the judgment appellant perfected his appeal to this court with a motion to advance and the submission of the same was advanced on the docket of this court with the approval of appellee, who did not file a brief in the cause in this court.

The trial court filed findings of fact and conclusions of law which, in effect, are as follows: That appellant had established sufficient grounds for a divorce and would be entitled to the same if he had satisfied the law as to residence requirements; that appellant was a soldier in the armed forces of the United States Government; that he was a resident of the State of Georgia when he was inducted into such services and sent to Sheppard Field in Wichita County in June, 1942 and sent to Amarillo Field in Potter County more than six months prior to the filing of his suit; that he had expressed an intention to make Texas his home to some of his companions but that his expressed intentions to make Texas his home were not sufficient to meet the requirements of the law as to residence in that the intentions did not concur with any overt act fixing residence, nor had the intentions been associated with any fixed or established act.Conclusions of law were filed in accordance with the findings of fact.

Appellant complains that the trial court erred in finding that appellant's intentions to make Texas his home were not sufficient to meet the residence requirements as provided by article 4631, Revised Civil Statutes, and in concluding as a matter of law that appellant was not entitled to a divorce.Appellant contends that the facts in the instant case come clearly within the rules laid down by the opinion of this court in Struble v. Struble, Tex.Civ.App., 177 S.W. 2d 279, 285.

This court, in an opinion written by Associate Justice Heare in the Struble case, discussed and analyzed the facts raising similar issues in that case to those we find raised in the instant case.In the Struble casethis court held as a matter of law that: "So far as residence is concerned, there must be more than intent; there must be more than physical presence; there must be a concurrence of overt act and bona fide intention to make and maintain a home in this state."

In the Struble caseappellant testified that he had originally lived in New Jersey where he was engaged in business; that in 1940 as a civilian he visited various parts of Texas, including Amarillo, seeking a new business location for financial investments and was favorably impressed with Amarillo; that he then visited California and returned to New Jersey and disposed of all of his business interests in that state; that he definitely decided in 1940 to change his domicile from the State of New Jersey to Amarillo, Texas, where he planned to invest in a business and gave his reasons for such a change; that he disposed of his business in New Jersey late in the same year with a view of making the change and had continuously made his plans accordingly; that he had married in October, 1937, and his wife had abandoned him in January, 1938; that he was thirty-one years of age and subject to draft and military service and he therefore hesitated to re-enter business under the circumstances at the time but he"had formed a fixed and permanent intention to live in Texas permanently" and had never changed his mind; that he volunteered for military service on May 19, 1942, but intended then to return to Amarillo to live when he was discharged; that he had told others many times of his intentions to change his residence to Amarillo, Texas; that he chose Texas for military service because it was his home and was sent at his request to Sheppard Field, Wichita Falls, on May 21, 1942, where he kept and occupied at night a room at the Kemp Hotel; that he was transferred to the Amarillo Air Field, his home town, September 6, 1942, where he kept and occupied at night a room in the Amarillo Hotel; that he had volunteered to contribute to...