Shankles v. Shankles

• Decision Date: 18 September 1969
• Docket Number: No. 4821,4821
• Parties: Douglas Lee SHANKLES, Appellant, v. Barbara Courtney SHANKLES, Appellee. . Waco
• Court: Texas Court of Appeals

Page 803

445 S.W.2d 803

Douglas Lee SHANKLES, Appellant, v. Barbara Courtney SHANKLES, Appellee.

No. 4821.

Court of Civil Appeals of Texas.

Waco.

Sept. 18, 1969.

Rehearing Denied Oct. 16, 1969.

Brown, Kennedy & Hill, Paul N. Brown, Sherman, W. T. McDonald, Bryan, for appellant.

William R. Vance, Bryan, for appellee.

OPINION

HALL, Justice.

The defendant in a divorce action appeals from a judgment which granted the plaintiff, the wife, a divorce. The judgment also contained orders on child custody and support, visitation, property division and attorneys fees. Trial was to the court without a jury.

The parties were married in 1958. At the time of their marriage defendant was, as he presently is, a member of the United States Air Force. They have resided at various base locations. In August, 1966, they moved to Langley Air Force Base, Virginia, from Japan. They have five children.

The first and second points of error complain of the overruling of defendant's plea in abatement and motion to dismiss.

The defendant left Langley Air Force Base on a temporary duty assignment to the Far East on February 5, 1968. He did not return to the United States until the last week of July, 1968. On May 30, 1968, plaintiff physically moved to Brazos County, which is the county of this suit. She has remained there. Her original petition for divorce was filed on July 26, 1968. Shortly thereafter, defendant challenged plaintiff's qualifications to maintain the suit, alleging in his plea in abatement that plaintiff had not been a resident of the state for twelve months and the county of suit for six months, as required by Article 4631, Vernon's Annotated Texas Civil Statutes, when she filed her petition.

The evidence of the hearing on the plea in abatement shows that defendant was reared in Grayson County, Texas; that he was a resident of Texas when he entered the military service; that he owns an interest in realty in Grayson County; that he has always listed Sherman, Grayson County, Texas as his permanent address in his military records; that he and plaintiff have always kept their Texas Drivers' Licenses current, and registered their automobiles in Texas; that they have maintained their only checking account and done their 'everyday banking business' in a bank at Sherman; and that their income tax returns have been filed with the Office of Collector of Internal Revenue that services Grayson County. Defendant testified that he has always intended to serve 20 years with the Air Force, then retire and 'go back to the farm' in Grayson County where he 'grew up' and work cattle, there, on land owned by his father.

Article 4631 provides that a citizen of Texas who has been absent from the State for more than six months because of military service is entitled to sue for divorce in this state and in the county in which he had his residence before entering the service. Moreover, as shown above, there is probative evidence in the record that, while in military service, defendant considered and intended that Texas should be the state of his permanent residence. See Jones v. Jones (Tex.Civ.App., 1943, no writ hist.), 176 S.W.2d 784, 786; Bough v. Bough (Tex.Civ.App., 1953, no writ hist.), 263 S.W.2d 573, 574. Generally, before separation, a wife's domicile follows that of her husband. Wood v. Wood, 159 Tex. 530, 320 S.W.2d 807, 812. Thus, the record supports the implied finding of the trial court that plaintiff had been an inhabitant of Texas for a period of twelve months immediately preceding the filing of her original petition, as required by Article 4631.

It is true that plaintiff had not resided in the county of suit for six months when she filed this suit. However, under the record, we fail to see how the defendant was prejudiced by the trial court's ruling on his plea in abatement. Trial was not had until after plaintiff had filed her second amended original petition on December 3, 1968, and defendant had filed his first amended original answer on January 7, 1969. By the time fo the filing of her trial pleading, plaintiff had actually resided in the county of suit for more than six months.

It seems to be the settled rule that if an amended petition is filed after the petitioner for divorce has resided in the county of suit for six months, but before a hearing on the merits, then the requirement in question of Article 4631 has been satisfied, even though the original petition was filed before six months' residence qualifications had been met by the petitioner. Myers v. Myers (Tex.Civ.App., 1948, no writ hist.), 210 S.W.2d 832, 833; Ingram v. Ingram (Tex.Civ.App., 1964, writ dism.), 380 S.W.2d 666, 670.

Defendant's motion to dismiss was filed during the hearing on the merits, and alleged as its only ground that the plaintiff had not been a resident of the state for twelve months immediately prior to the filing of her second amended original petition. From what we have said in relation to the trial court's ruling on the defendant's plea in abatement, it is apparent that the trial court correctly denied the motion to dismiss.

The first two points of error are overruled.

The contention is made in the third point of error that the evidence is not sufficient to support the judgment of divorce.

Plaintiff based her action for divorce on the general allegation in her pleadings that 'prior to the time when plaintiff separated from defendant * * * on February 5, 1968, * * * defendant was guilty of excesses, cruel treatment and outrages toward plaintiff of such a nature as to render their further living together insupportable.'

The record contains a complete statement of facts as well as findings of fact and conclusions of law.

Most of the testimony upon which the trial court based findings of misconduct by the defendant was very general. Some of it was equivocal. The plaintiff testified that 'through the years, Doug has expected me--as far as the subject of money, it was always 'use as small amount as possible.' In order even to buy anything other than groceries or what-not, it was necessary to justify the purchase; regardless of whether it was a new appliance or anything as large as a stereo set, it was necessary to justify the purchase. As far as our social activities, as far as anything for myself, it was expected that I ask, in so many words, 'Do you mind if I--?' He was domineering in the aspect that he wanted actually no one to visit in our home or to go out for dinner or anything like this, and this has been all through the years. * * * Doug never actually not welcomed anyone in our home except very few instances, but for the most part it was after they would leave. He would spend the next thirty minutes discussing what was wrong with them, and you cannot ask someone else back in your home that your husband does not like or what not.' When asked 'whether or not disputes arose between you and your husband over the fact that you wished to engage in other activities that the officers' wives normally engaged in,' plaintiff responded, 'Well, there was never so many words, because I knew that--I don't like to argue; therefore, if I went to too many wives' club activities or played bridge too much or what-have-you, there would...