Rauch v. Rauch
| Decision Date | 27 January 1922 |
| Docket Number | (No. 8112.) |
| Citation | 237 S.W. 334 |
| Parties | RAUCH v. RAUCH. |
| Court | Texas Court of Appeals |
Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.
Action for divorce by Mat Rauch against Anna Ryan Rauch. From a decree for plaintiff, and the allowance to defendant out of the community property, both parties appeal Affirmed.
Edw. H. Moss, of La Grange, for plaintiff.
L. D. Brown, of La Grange, for defendant.
In this proceeding the husband sued the wife for divorce upon the ground of cruel treatment, alleged to have consisted of a series of studied vexations, deliberate insults, and provocations in the form of opprobrious epithets and false accusations against himself and members of his family, applied so constantly and so nearly continuously throughout the brief three-year span of their married life, as to make their continuing longer as husband and wife insupportable.
The wife denied the allegations and countered with a cross-action, charging that plaintiff had so constantly abused her sexually as to completely undermine her normal good health, had then refused to provide for necessary means and medical treatment to restore her, and with the intent to humiliate and distress her, as well as to further destroy her health, had filed this suit against her, setting forth therein false and malicious accusations, calculated to shame and humiliate her; that such conduct and acts upon his part amounted to such cruel and unusual treatment as entitled her to a divorce, for which she prayed. It is not deemed essential that further details of pleadings so mutually accusatory be here recorded.
The defendant further averred that during their married life community property had come into existence, all of which was in plaintiff's possession, and she asked for an accounting and division of it between them, for alimony pending the suit, and for $500 attorney's fees. By way of supplemental answer, in reply to plaintiff's amended petition, she alleged that plaintiff had condoned all acts and wrongs set up by him, and that up to the 15th day of September, 1919, had lived with her in all respects of wedlock, filing his suit for divorce on the next day. These supplemental matters were denied by the plaintiff in an answering petition, in which he also pleaded that anything he had done even looking toward forgiveness or condonation had been done upon promises of the defendant to treat him as a wife should her husband, all of which she had not only failed to keep, but that on September 15, 1919, on the Market Square in Houston, she had again called him all sorts of vile and ugly names, at the same time threatening to get a pistol and kill him.
The trial before the court without a jury resulted in a judgment granting plaintiff a divorce, refusing defendant's cross-claim for a divorce, as well as her application for attorney's fees, but awarding her, along with a few other small items of like character, a recovery of $330 for one-half the value of what the court found to be community property between them; $300 of this was for one-half of 10 salary checks, for $60 each, earned and deposited in bank by plaintiff during the marriage relation, and $14 of it represented one-half the interest earned during that time on a separately owned note of his for $350.
Both parties complain upon appeal; the defendant, as appellant, of each feature of the judgment, and the plaintiff, through cross-assignments, of that part decreeing the defendant the one-half of the salary and interest items just referred to, as out of community property. We are unable to hold there was reversible error affecting either party, and order an affirmance.
Appellant's contention that the evidence showed condonation on his part of all grounds for divorce set forth in the appellee's pleadings, in that there was proven such habitual indulgence in the use of obscene language between them during practically the whole period of their married life, while at the same time engaging in conjugal embraces and relations, as to amount to a license to use such language, and that consequently it could not constitute the cruel treatment for which our statute permits a divorce, is not thought to be sustained. There was merely such conflict in the testimony relating to these matters as the trial court had the authority to resolve. The determination of it there is therefore binding upon this court.
For instance, there was ample direct testimony to support findings, not only that the acts and attitudes from which...
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