Prendergast v. Prendergast, 10677.

• Decision Date: 08 December 1938
• Docket Number: No. 10677.,10677.
• Citation: 122 S.W.2d 710
• Parties: PRENDERGAST v. PRENDERGAST.
• Court: Texas Court of Appeals

122 S.W.2d 710

PRENDERGAST v. PRENDERGAST.

No. 10677.

Court of Civil Appeals of Texas. Galveston.

December 8, 1938.

Appeal from District Court, Galveston County; J. C. Canty, Judge.

Divorce suit by George P. Prendergast, Jr., against Julia Mae Prendergast, wherein the defendant filed a cross-action and a judgment was entered in favor of the defendant on her cross-action, and awarding the care and custody of the infant daughter of the parties to the defendant and the care and custody of the minor son of the parties to the plaintiff. From the judgment insofar as it decreed the care and custody of the minor son to the plaintiff, the defendant appeals.

Affirmed.

Marsene Johnson, Jr., of Galveston, for appellant.

Geo. P. Prendergast, of Galveston (Wm. Stiglich, of Galveston, of counsel), for appellee.

W. E. MONTEITH, Special Commissioner.

Appellee, George P. Prendergast, Jr., as plaintiff, brought this suit in the district court of Galveston County against appellant, Julia Mae Prendergast, as defendant, for divorce and for the care and custody of their two minor children, or, in the alternative, for the custody of his minor son, George Marshall Prendergast.

Appellee in his original petition alleged that he was and had been for more than 12 months next preceding the filing of his petition for divorce a bona fide inhabitant of the State of Texas, and an actual bona fide resident of Galveston County for a period of more than 6 months next preceding the filing of said petition, and that appellant resided in Harris County, Texas.

Appellant filed an amended answer, answering the allegations relied on by appellee, and a cross-action. She denied appellee's allegations with reference to cruel treatment, admitted the truth of the allegations in reference to name, residences, marriage of the parties, and birth of their two children. In her cross-action, after alleging sufficient grounds for relief sought, she asked that the prayers of plaintiff be denied, and that she have judgment on her cross-action, dissolving the bonds of matrimony, for the care and custody of their two minor children, and for an order requiring appellee to contribute a reasonable sum to aid in the maintenance of the said minor children.

The trial, which was before the court without a jury, resulted in judgment in favor of appellant on her cross-action, dissolving the bonds of matrimony existing between plaintiff and defendant, and awarding the care and custody of the daughter, Billie Beth, nine months of age, to appellant, and the care and custody of the minor son, George Marshall Prendergast, four years of age, to appellee. Said decree also provided for the payment to appellant by appellee of $5 per week for the support of their said minor daughter.

Judgment was rendered on April 7, 1937, and on May 11th appellant filed her motion for a new trial, asking the court to set aside said judgment in so far as it decreed the care and custody of the minor, George Marshall Prendergast, to appellee, alleging as her reasons therefor that said portion of said judgment was contrary to the law and the evidence in said cause, and that the same was contrary to the best interests of said minor, and praying the court to award the care and custody of both children to her.

On May 26, 1937, the court filed his findings of fact and conclusions of law, finding, among other facts, that the appellant, at the time of the filing of the suit, was an actual bona fide inhabitant of the State of Texas, and had been such continuously for more than 12 months immediately next preceding the filing of this suit, and that the appellant had resided continuously in Galveston County for more than 6 months immediately next preceding the filing of such suit. The court further found that all the material allegations contained in appellant's cross-action were established on the trial, and found "from the evidence, from personal knowledge, and from personal investigation", that both appellant and appellee were of good moral character and reputation and of domestic habits, and that both had the welfare and best interests of their children at heart, and that no evidence was adduced at the trial showing why either should not have the custody of said minor children. He found further that both appellant and appellee were employed, and that the children were being taken care of by appellant's mother.

In his conclusions of law, the court found that it was to the best interest and welfare of the minor child, George Marshall Prendergast, that his care, custody, and control be awarded to appellee, and that it was to the best interest and welfare of the child, Billie Beth Prendergast, that her care, custody and control be awarded to appellant.

On July 15, 1937, the parties filed an agreed statement, in narrative form, of the facts proved on the trial of the case. In said statement, appellant is shown as having testified that she and appellee had resided in Galveston County up to the date of their separation on July 24, 1936, and that she had resided in Harris County from that date up to the date of the trial, but neither she nor appellee are shown to have testified to the residence of appellee subsequent to that date.

It is the contention of appellant that since the instrument above referred to does not affirmatively show that testimony was adduced on the trial of said cause to the effect that appellee had been an actual bona fide inhabitant of the State of Texas for more than a year, and that he had resided in Galveston County for more than 6 months next preceding the filing of this suit, that the trial court committed fundamental error, which may be raised by assignment on appeal to this court for the first time, though not presented to the trial court on motion for new trial.

The trial court in his findings of fact filed on May 26, 1937, found that appellee had been an actual bona fide inhabitant of Texas for a period of 12 months, and that he had resided in Galveston County for 6 months next preceding the filing of this suit. Appellant has no assignment of error challenging the sufficiency of the evidence to sustain any of the findings of the trial court, hence said findings are binding and conclusive upon this court, particularly since the summary of the evidence above referred to does not state that the evidence narrated therein was the only evidence adduced on said trial, or that the issues of residence were not testified to in the trial of said cause.

The above proposition, however, is not decisive of this appeal, since the Supreme Court of this State has definitely held that R.S. Article No. 4631, Vernon's Ann.Civ.St. art. 4631, which provides: "No suit for divorce shall be maintained in the Courts of this State unless the petitioner for such divorce shall at the time of exhibiting his or her petition, be an actual bona fide inhabitant of this State for a period of twelve (12) months, and shall have resided in the county where the suit is filed for six (6) months next preceding the filing of same, "is not a jurisdictional statute at all, but merely a statute prescribing the qualifications of the plaintiff in divorce cases, and that the plaintiff must possess the qualifications prescribed by Article 4631 before he is entitled to prosecute a divorce suit in the courts of this state.

This doctrine was handed down in an opinion by the Commission of Appeals, which was adopted by the Supreme Court, in the case...