Redwine v. Redwine, 5756.
| Decision Date | 09 December 1946 |
| Docket Number | No. 5756.,5756. |
| Citation | 198 S.W.2d 472 |
| Parties | REDWINE v. REDWINE et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lubbock County; G. V. Pardue, Judge.
Suit by Frank J. Redwine against Geneva Redwine for divorce and for custody of minor child of the parties, wherein the defendant filed a cross-action. Plaintiff's parents and his sister and brother-in-law intervened praying for custody of the child. From a judgment awarding divorce to plaintiff and awarding custody of child to paternal grandparents, defendant appeals.
Affirmed in part, and reversed and rendered in part.
E. A. Blair, of Lubbock, for appellant.
Nelson, McCleskey & Howard, of Lubbock, for appellees.
The appellee Frank J. Redwine, hereafter called the husband, brought this suit against the appellant Geneva Redwine, for a divorce and custody of their child, a boy about two and one-half years of age. The appellant filed an answer and cross-action in which she asked for a divorce and custody of the child. Cruel treatment was alleged as grounds for divorce by both parties. The parents of the husband and his sister and brother-in-law intervened, praying that the custody of the child be awarded to one or the other of those families. The case was tried before the court without a jury. Judgment was rendered granting the husband a divorce, awarding custody of the child to the paternal grandparents and ordering the husband to pay $25 per month for the support of the child. The appellant attacks the judgment on the grounds that a divorce should have been granted to her, that the husband condoned whatever acts of cruelty she committed, that the custody of the child should have been granted to her and that certain testimony was inadmissible.
The sufficiency of the evidence is not questioned. Our review of it shows that such relation existed between the husband and appellant as to render their further living together insupportable. The finding of the court in the husband's favor was general and, therefore, every issue of fact raised by the testimony must be found in his favor. Swift v. Swift, Tex.Civ.App., 37 S.W.2d 241, 242. Relative to the defense of condonation, the general rule is that the injured party must be treated with conjugal kindness and consideration in the future or the former acts of cruelty are revived. Tinnon v. Tinnon, Tex.Civ. App., 278 S.W. 288, 290; Barta v. Barta, Tex.Civ.App., 283 S.W. 201, 203; Hays v. Hays, Tex.Civ.App., 123 S.W.2d 968, 969. Acts of cruelty occurring after separation are available as grounds for divorce. Steele v. Steele, Tex.Civ.App., 257 S.W. 300. It logically follows that such acts will revive condoned acts of cruelty occurring prior to the separation. The testimony shows that the husband told appellant that he would forgive her conduct while he was overseas in military service if she would thereafter make a home for him and the baby. The appellant not only did not promise to conduct herself in accord with this request or later ones but continued to act in such a manner as to humiliate and vex him. On at least one occasion after their separation, her deportment was of a similar nature. It appears that the husband was earnesly attempting to preserve his home and his promises to forgive and forget did not bar him from urging appellant's prior acts of cruelty as grounds for divorce when she demonstrated that his promises would not induce her to resume proper marital relations. The appellant's contentions that the divorce should have been awarded to her and that her acts of cruelty had been condoned are overruled.
The chief contention in the case is presented by the point that custody of the minor child should have been awarded to the appellant. This court has held that unless the mother is shown to be unfit to assume such responsibilities, she is the proper one to have the custody and care of a...
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