Powell v. Powell, 4425.

• Decision Date: 31 December 1946
• Docket Number: No. 4425.,4425.
• Citation: 199 S.W.2d 285
• Parties: POWELL v. POWELL.
• Court: Texas Court of Appeals

199 S.W.2d 285

POWELL v. POWELL.

No. 4425.

Court of Civil Appeals of Texas. Beaumont.

December 31, 1946.

Appeal from District Court, Jefferson County; Quentin Keith, Judge.

Suit for divorce by Helen Powell against Clarence Powell. Judgment for defendant and the plaintiff appeals.

Judgment reversed and rendered in part and cause remanded in part.

Harold R. Clayton, of Pt. Arthur, for appellant.

Jack Voyles, of Pt. Arthur, for appellee.

WALKER, Justice.

Helen Powell brought this suit against her husband, Clarence Powell, to procure a divorce and the custody of two children, aged respectively 11 and 13 years, and for other relief.

Plaintiff alleged that she and defendant were married on or about October 1, 1931, and lived together thereafter until January 15, 1941, when they "were separated" permanently. As ground for divorce, she plead ill treatment of her by defendant, rendering the parties' living together insupportable.

She also alleged "that defendant has been legally adjudged to be insane, and is now an inmate of the Insane Asylum at Rusk—and has been in such insane asylum for approximately two years" (the petition was filed on July 10, 1946); but she plead further that her cause of action for divorce arose "a short time prior to the date defendant was adjudged to be insane."

The trial court appointed a guardian ad litem for defendant, who filed answer in defendant's behalf; and on August 27, 1946, the trial court rendered judgment denying plaintiff a divorce. The following quotation from this judgment exhibits such fact findings as the trial court made, and states the grounds on which that court acted:

"On this the 27th day of August, 1946, came on to be heard the above entitled and numbered cause, and it having been shown unto the Court that Defendant, Clarence Powell, is insane, and is confined in the insane asylum at Rusk, Texas; and the Court thereupon appointed Jack Voyles a licensed and practicing attorney of Port Arthur, Jefferson County, Texas, as guardian ad litem to represent defendant; and came the plaintiff in person and by and through her attorney of record, and came Jack Voyles, guardian ad litem; and all parties having announced ready for trial, and a jury being waived, the cause was submitted to the Court; and the Court having read the pleadings and having heard the argument of counsel and the testimony, finds that on the 15th of February, 1945, Clarence Powell, defendant herein, was adjudged to be insane by the County Judge of Jefferson County, Texas; that plaintiff, Helen Powell, is entitled to a divorce from defendant under Section 1 of Article 4629 of Texas Revised Civil Statutes; and the Court further finds that the acts of cruelty on the part of defendant occurred prior to the date of adjudication of defendant's insanity.

"The Court is of the opinion that under the provisions of Article 4629, Texas Revised Civil Statutes, as amended by Acts 1941, 47th Legislature, p. 383, ch. 214, Vernon's Ann.Civ.St. art. 4629, the Court is without authority to grant a divorce, even though the acts of cruelty on the part of defendant occurred prior to the date of adjudication of his insanity; and for that sole reason, the Court is of the opinion that a divorce should be denied.

"It is, therefore, accordingly ordered, adjudged and decreed that a divorce be denied plaintiff, and that all costs in this behalf expended be assessed against the plaintiff * * *".

Plaintiff took this appeal from this judgment and assigns one Point of Error for reversal. She says that there is no statutory prohibition against divorce from an insane spouse, and that a prayer for divorce under Section 1 of Art. 4629, for cruel treatment occurring before the defendant spouse became insane, may now be granted despite the lunacy of the defendant when the suit is filed, or afterward.

The guardian cites the possibility that a plaintiff in divorce will impose upon the insane spouse and upon the trial court, too, knowledge of the facts respecting the grounds of divorce being often confined to the parties and inaccessible except from the particular plaintiff; and says further that Art. 4629, as amended by Acts 1941, 47th Leg., p. 383, Ch. 214, must be construed in the light of the history of Art. 4629, and that when so construed, Section 6 thereof, added thereto by the aforesaid Act of 1941, must be held to be exclusive and to provide the only instance where divorce may be granted from a spouse who is insane when the suit is filed or tried.

We sustain plaintiff's Point of Error. We shall first refer to statutes preceding the Act of 1941, and then, to our construction of Art. 4629 as amended by said Act.

Under the Code of 1911, the grounds of divorce, as distinguished from annulment, were set out in Art. 4631; but in 1913. Art. 4632 of that Code was amended by Ch. 97, Gen.Laws 1913, p. 183, so as to provide an additional ground of divorce (separation for ten years). This amendatory Act contained a provise that "This Act shall not apply to any case where either the husband or wife is insane"; and it was held by the Court of Civil Appeals in Daugherty v. Daugherty, Tex.Civ.App., 198 S.W. 985, that divorce from an insane spouse could not be granted even though the cause of action (cruel treatment) accrued before defendant became insane. And see Skeen v. Skeen, Tex.Civ.App., 190 S.W. 1118; White v. Holland, Tex.Civ.App., 229 S.W 611, page 613; McNabb v. McNabb, Tex. Civ.App., 250 S.W. 434 (dissenting opinion).

This contruction was overruled in Wilemon v. Wilemon, 112 Tex. 586, 250 S.W. 1010, wherein it was held that the proviso quoted above operated only upon the particular ground for divorce (ten year separation) expressed in Art. 4632, R.S. 1911, as amended by the Act of 1913, and that as regards other grounds of divorce which accrued against the defendant before the defendant became insane, the plaintiff spouse had the same right to relief against the insane spouse as one has at common law against an insane defendant upon causes of action which antedate the defendant's insanity. This construction was followed in Jordan v. Jordan. Tex.Civ.App., 257 S.W. 569.

The 1925 Code collected and expressed in Art. 4629, R.S. 1925, all of the various grounds of divorce, and from each ground was excepted the case of the insane spouse. This result was accomplished by the opening words of Art. 4629, reading: "Except where the husband or wife is insane, a divorce may be decreed in the following cases * * *" Under this provision it was of no significance that a cause of action for divorce had vested before the defendant became insane; the controlling fact, requiring that the divorce be denied, was the defendant's insanity when the suit was tried. Young v. Young, Tex.Civ.App., 41 S.W.2d 367.

However, in 1941, Art, 4629, R.S. 1925, was amended by the statute to which we referred above. Under this amendment, the...