Schreiner v. Schreiner
Decision Date | 07 November 1973 |
Docket Number | No. 15221,15221 |
Citation | 502 S.W.2d 840 |
Parties | Audrey Phillips SCHREINER, Appellant, v. Charles SCHREINER, III, Appellee. |
Court | Texas Court of Appeals |
Pat Maloney, San Antonio, for appellant.
Joe W. Burkett, Jr., Kerrville, Kampmann, Church, Burns & Brenan, San Antonio, for appellee.
Appellant, Audrey Phillips Schreiner, appeals from the judgment entered after a nonjury trial granting her a divorce, awarding custody of two minor children to her, providing for child support payments of $200 per month for each child, granting her attorney's fees in the amount of $60,000 and other expenses incident to said divorce suit, and making a partition and division of the property of the parties. The original petition for divorce was filed by Charles Schreiner, III, the appellee herein, in Kerr County, Texas, on September 1, 1970; and judgment was signed and entered on March 2, 1973. The trial court filed extensive findings of fact and conclusions of law. 1 Appellant is sometimes herein referred to as respondent, and appellee, as petitioner.
By four points of error, appellant asserts that the trial court did not have jurisdiction and venue over this divorce proceeding in Kerr County, Texas. We first consider these points of error. 2
Appellee's petition for divorce was filed on September 1, 1970. Section 3.21 of the Texas Family Code, V.T.C.A (effective January 1, 1970) provides that no suit for divorce shall be maintained unless at the time the suit is filed the petitioner has been a domiciliary of this state for the preceding twelve-month period, and a resident of the county in which the suit is filed for the preceding six-month period. Section 3.21 of the Texas Family Code substantially follows the language of Article 4631, Vernon's Tex.Rev.Civ.Stat.Ann., its predecessor, with the principal distinction being the substitution of the word 'domiciliary' for the word 'inhabitant.' 3 Under the record in this case, we do not deem the change in wording of any particular significance, and as appellant points out in her brief, it has always been the law in this state that to secure a divorce, you must be both a domiciliary of the state for a period of twelve months, and a resident of the county for the preceding six months. 4
The provisions of the residency statute are not jurisdictional, but merely provide the necessary residential qualifications for bringing an action for divorce. Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77 (1933); Simonsen v. Simonsen, 414 S.W.2d 54 (Tex.Civ.App.--Amarillo 1967, no writ); Nowell v. Nowell, 408 S.W.2d 550 ( ); Perusse v. Perusse, 402 S.W.2d 931 (Tex.Civ.App.--El Paso 1966, no writ); Ingram v. Ingram, 380 S.W.2d 666 (Tex.Civ.App.--Dallas 1964, writ dism'd); Meyer v. Meyer, 361 S.W.2d 935 (Tex.Civ.App.--Austin 1962, writ dism'd). The question of residency as a qualification for maintaining a divorce suit is a fact issue to be determined by the trial court, and the trial court's findings will not be disturbed on appeal unless there is a clear abuse of discretion. Stacy v. Stacy, 480 S.W.2d 479 (Tex .Civ.App.--Waco 1972, no writ); Meyer v. Meyer, supra; Earhart v. Earhart, 358 S.W.2d 878 (Tex.Civ.App.--San Antonio 1962, no writ); Vinson v. Vinson, 340 S.W.2d 562 (Tex.Civ.App.--Waco 1960, no writ).
It is to be remembered that in the judgment here involved, apellant, Mrs. Schreiner, was given a divorce from appellee. By the points of error here now under consideration, she now complains of the judgment granting the divorce. At no time, either prior to or during the trial, was any question ever raised as to the lack of jurisdiction of the trial court of Kerr County to consider and grant the divorce. The residential qualifications of appellee were never raised nor controverted by appellant by any pleading. In fact, prior to the trial of the case, appellant filed a pleading styled 'RESPONDENT'S FIRST SUPPLEMENTAL ANSWER AND ALTERNATE PLEADING,' in which pleading, among other things, she pled, 'Alternatively, Respondent avers that if the Court determines that a decree of divorce should be entered that said decree should grant the divorce in favor of Respondent against Petitioner on the grounds of Petitioner's adulterous relationship with Pat Lopez and other acts of cruelty by Petitioner as set forth in Sections 3.03 and 3.02 of the Family Code.' During cross-examination during the trial, appellant testified,
In Prendergast v. Prendergast, 122 S.W.2d 710(Tex.Civ.App.--Galveston 1938, no writ), the husband sued for divorce in Galveston County, Texas, and the wife filed a cross-action. Judgment was entered granting the wife a divorce, awarding the care and custody of one minor child to the wife, and another minor child to the husband. The wife contended on appeal that the record did not affirmatively show that testimony was adduced at the trial to show that the husband had been an actual bona fide inhabitant of Texas for more than twelve months and had resided in Galveston County, Texas, for more than six months next preceding the filing of the suit for divorce; and that this was fundamental error. The appellate court held that, appellant (wife) having answered the allegations of the husband's petition, and having invoked the jurisdiction of the court by filing a cross-action seeking affirmative relief, the district court of Galveston County, in which such case was originally filed, had jurisdiction of the parties and the subject matter of the suit, and that appellant (wife) is not now in any position to complain of the action of the trial court in this respect.
In Aucutt v. Aucutt, supra, Mabel Aucutt instituted suit in the district court of Lubbock County, Texas, against John W. Aucutt to obtain a divorce and to have a contract for settlement of property confirmed. The husband filed an answer and a cross-action seeking a divorce against his wife. In such cross-action, the husband did not allege that he had been an actual bona fide inhabitant of the state of Texas, nor that he had resided in Lubbock County for the required period of time. The wife, sometime thereafter, took a nonsuit. The husband proceeded to trial on the cross-action; and after a hearing, judgment was entered for the husband granting a divorce against plaintiff. The wife contended that the judgment was void because the court was without jurisdiction to hear and determine the cause, since the wife had taken a nonsuit, and the husband did not allege, nor did he prove, that he was a resident of Lubbock County, Texas, for the required period of time. The Commission of Appeals (judgment adopted by the Supreme Court) held that the district court of Lubbock County, the county in which the original petition was filed, had jurisdiction of the parties and the subject matter of the suit, even after the wife dismissed her divorce action; and that the husband had a right to continue to prosecute his cross-action for divorce after his wife's action for the same relief had been dismissed, and even though he had never resided in Lubbock County.
Under the circumstances hereinbefore set forth, it is our opinion that the district court of Kerr County, Texas, had jurisdiction of the parties and subject matter of this suit; and that appellant is not now in a position to complain of the action of the court in this respect.
In any event, we hold that there is sufficient evidence to uphold the trial court's judgment and findings that it had jurisdiction and venue over this divorce proceeding in Kerr County, Texas.
Appellee testified that after he and Mrs. Schreiner married, they lived on the YO Ranch in Kerr County in a house that was given to them by his mother; that they continued to reside there until sometime in 1954, when during the drought, they leased a ranch in Montana and moved some cattle there, staying there until about January of 1955, when they came back to the ranch; that they continued to live on the ranch until about 1956, when they bought a home in Kerrville, Kerr County, Texas, where they stayed about two or three years; that they then bought a larger home in Kerrville and moved to that house; that they continued to live there until sometime in 1961, when, because of Mrs. Schreiner's illness and other difficulties, they bought a large home on Argyle Street in San Antonio, where they stayed for a period of time; that Mrs. Schreiner was unhappy with such house and a great deal of time was spent at the home of her mother in San Antonio; that during the years of 1968 and 1969, they were living a substantial period of time in the back room of the home of his mother-in-law, and part of the time at the ranch; that on numerous occasions he requested and even insisted that they move back to the ranch in Kerr County; that during all this period of time, he was working on the ranch in Kerr County, and on the occasions when they were in San Antonio, he would drive back and forth from the ranch; that sometime in February, 1970, he decided that he had had enough of '. . . that family and Audrey . . .' and '. . . checked it to them and left . . .'; that on February 23, Mrs. Schreiner was in the hospital and he visited her, and a couple of days later, he took her back to her mother's, went back to the ranch, and moved out to Casa Grande; and that he has lived on the ranch ever since.
It appears clear from the evidence that both Mr. and Mrs. Schreiner have resided in, been domiciliaries of, and been bona fide inhabitants of, the state of Texas immediately preceding the filing of the petition for divorce herein for more than fifteen years; and there is evidence that appellee always desired and intended to...
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