Pride v. Pride

• Decision Date: 03 October 1958
• Docket Number: No. 15448,15448
• Citation: 318 S.W.2d 715
• Parties: James H. PRIDE, Appellant, v. Marie PRIDE, Appellee.
• Court: Texas Court of Appeals

Page 715

318 S.W.2d 715

James H. PRIDE, Appellant, v. Marie PRIDE, Appellee.

No. 15448.

Court of Civil Appeals of Texas, Dallas.

Oct. 3, 1958.

Rehearing Denied Nov. 7, 1958.

Geo. K. Holland, Dallas, for appellant.

Raggio & Raggio, Louise B. Raggio, Dallas, for appellee.

DIXON, Chief Justice.

James H. Pride has appealed from a judgment awarding his wife, Marie Pride, a divorce, dividing their property, decreeing a money judgment of $1,500 in favor of the wife, allowing an attorney's fee of $1,500, and enjoining him from harassing, molesting, coming about, or communicating with her. There were no children involved. The case was tried without a jury.

In his first point appellant asserts that grounds for divorce alleged in a previous divorce action brought by the wife, but later dismissed by her, cannot be considered in this suit, since the parties effected a reconciliation and resumed their marital relationship following the institution of the first suit. Appellee's pleadings and evidence are to the effect that the reconciliation was based on appellant's promise to cease his acts of cruel treatment as described in the first divorce petition, but that soon after the reconciliation he resumed said acts. Under such circumstances it is permissible for the court to consider the acts of cruelty which were the basis for the first divorce action. Thompson v. Thompson, Tex.Civ.App., 231 S.W.2d 496. Appellant's first point is overruled.

In his second and fourteenth points appellant says that (2) appellee failed to allege or prove sufficient legal grounds for divorce; and that (14) there was no evidence to support the court's finding that appellant harassed appellee. Appellee's pleadings and her testimony describe twenty separate episodes occurring from the time of the marriage June 5, 1955 to the time of the filing of this divorce suit July 16, 1957. These episodes involve acts of physical violence, threats, humiliations, and indignities. They were sufficient grounds for divorce because of cruel treatment, including harassment. Art. 4629(1), V.A.C.S. Appellant's second and fourteenth points are overruled.

Appellant's third and seventh points allege that (3) appellee failed to allege or prove sufficient legal grounds to show fraud, and that (7) the court's disposition of the community property was not equitable. The judgment does not mention fraud and the record contains no findings of fact and conclusions of law. However appellee pled fraudulent concealment by appellant of the community assets and in our opinion there is sufficient evidence to support a finding to that effect. But a finding of fraud was not necessary, for regardless of fraud, Art. 4638, V.A.C.S. gives the trial court broad discretion to order a division of the estate of the parties in such a way as the court shall deem just and right. We see nothing inequitable in the division made by the court. Appellant's third and seventh points are overruled.

In his fourth point appellant complains that there were not sufficient pleadings and evidence to support a judgment of $1,500 or any other sums against him. Appellee pled that appellant had failed to list more than $4,000 in community funds and she prayed for a money judgment. Appellant himself testified that on April 18, 1957 he put $2,000 of community money in a hole in the floor of his apartment. On July 16, 1957, the date this suit was filed, he put another $1,000 in the hole and put another $1,000 into his pockets. He also admitted that on the date this suit was filed he drew $2,000 cash from the Lakewood State Bank. His testimony, which is vague and evasive, fails to account for this money. We think that under the circumstances presented in this record it was not improper for the court to enter a money judgment of $1,500 against appellant. Markum v. Markum, Tex.Civ.App. 273 S.W. 296. Appellant's fourth point is overruled.

Appellant's next point attacks the award of $1,500 to the wife as attorney's fees. An attorney experienced in divorce litigation testified that a fee of $1,500 was reasonable. Moreover appellant himself testified that he had agreed to pay his attorney $3,600 as a fee, part of which he had already paid. Appellant's fifth point is overruled.

In his sixth point appellant alleges that the court had no right or authority to 'sign and enter on January 15, 1958, a new judgment judicially changing, altering and amending the original judgment signed and entered October 25, 1957.'

The record disclosed that on October 25, 1957 the court signed a judgment which awarded an attorney's fee of $1,500, not to appellee Marie Pride, but direct to her attorneys Raggio & Raggio. Appellant's motion for new trial was filed November 25, 1957. The amended motion was overruled January 7, 1958. On January 15, 1958 the court corrected its judgment, so that the award of $1,500 was not made direct to the attorneys, but was to appellee Marie Pride for the benefit of her attorneys. Among the concluding paragraphs of the corrected judgment were the following:

'It is further ordered, adjudged and decreed that this judgment be entered nunc pro tunc as of the date of the entry of the original judgment, which was signed and entered the 25th day of October, 1957 and recorded in Book A. Page 428 of the records of this Court. * * * To all of which defendant in open court excepts and gives notice of appeal, etc. on this 17th day of October, 1957. * * * Signed and entered Nunc Pro Tunc 1-15-58.'

We shall not pass on the question whether the court correctly ordered that the judgment of January 15, 1958 be entered nunc pro tunc as of October 25, 1957, for that error, if it was error, does not under the circumstances, require a reversal of the judgment. The court retained control of its judgment for thirty days following the overruling of the motion for new trial on January 7, 1958. Dallas Storage & Warehouse Co. v. Taylor, 124 Tex. 315, 77 S.W.2d 1031 (Syl. 8); Sears, Roebuck & Co. v. Blackburn, Tex.Civ.App., 305 S.W.2d 791; Rule 329-b, subd. 6(c) Texas Rules of Civil Procedure. Therefore, looking at the substance rather than the form of the written decree, we hold it was proper on January 15, 1958 or on January 17, 1958, for the court to enter a corrected judgment. Appellant's sixth point is overruled.

The record discloses that testimony in this case began October 14, 1957, and was concluded on October 17, 1957. Appellee's attorneys thereafter prepared a proposed written from of judgment to be entered, and the court set October 25, 1957 as the date of a hearing to decide whether to approve or disapprove the proposed judgment. Appellant's attorney was notified of this setting. On the day named Hon. George K. Holland appeared in the case for the first time as attorney for appellant. He informed the court that he had been employed only the day before the date set for the hearing. He exhibited a letter from the attorney who had represented appellant during the trial, in which letter the attorney announced his withdrawal as appellant's attorney. There is nothing in the record to show that the attorney has ever asked for or been granted leave of the court to withdraw from the case. Kendall v. State, Tex.Civ.App., 51 S.W. 1102; 7 C.J.S. Attorney and Client Sec. 110, p. 944. Apparently he is still one of appellant's attorneys of record. Rule 10, T.R.C.P. Mr. Holland requested additional time to study the proposed judgment. After considerable discussion and argument by the attorneys this request was denied. Mr. Holland subsequently prepared and the court signed a written order refusing the request. At a later date in a hearing with the attorneys present, the court withdrew her signature from the order.

In his eighth and twentieth points appellant complains because the court refused to allow Mr. Holland additional time to study the proposed judgment and because of the withdrawal of the court's signature from the written order refusing Mr. Holland's request.

After a careful study of the record as a whole we have concluded that the procedures here under attack to not present reversible error. While the court might very properly have granted Mr. Holland additional time to study the proposed judgment, there was no abuse of descretion in refusing to do so and we see no harm to appellant in the court's refusal. Mr. Holland, with the record of the trial already made before he was employed, has ably represented appellant. And it is to be noted that the original judgment was subsequently corrected in the light of the motion for new trial. As for the withdrawal of the court's signature from the written order refusing to grant additional time: there is no question that the court did refuse to grant additional time. That is clear from the record regardless of the existence of any written order to that effect. No harm resulted to appellant by the withdrawal of the signature. Appellant's eighth and twentieth points are overruled.

In his ninth point appellant asserts that the court improperly and unreasonably refused to allow appellant's attorney to cross-examine appellee's witness, Morris Pride. From the record we gather that during cross-examination of the witness objection was made that the cross-examination should be limited to subject matter brought out on direct examination. This objection was sustained. The objection was not well taken, and it was error to sustain it. Texas is one of the jurisdictions which does not confine cross-examination to the matters brought out on direct examination. McCormick & Ray, 'Texas Law of Evidence' Vil. I, Sec. 600 (Second Edition). Under some circumstances the error would require a reversal of the judgment, but a careful reading of the statement of facts leads us to conclude that in this case the error was harmless. For after the court had sustained the objection considerable argument took place as to the nature of the questions which appellant's attorney wished to ask and their purpose. Th...