Stephens v. Stephens

• Decision Date: 10 March 1926
• Docket Number: (No. 2626.)
• Citation: 281 S.W. 1096
• Parties: STEPHENS v. STEPHENS.
• Court: Texas Court of Appeals

281 S.W. 1096

STEPHENS v. STEPHENS.

(No. 2626.)

Court of Civil Appeals of Texas. Amarillo.

March 10, 1926.

Error from District Court, Wilbarger County; J. A. Nabers, Special Judge.

Suit by W. H. Stephens against Lucy E. Robertson Stephens. Decree for plaintiff, and defendant brings error. Reversed and remanded.

Warlick & Poteet, of Vernon, and H. O. Williams and Bullington, Boone & Humphrey, all of Wichita Falls, for plaintiff in error.

J. Shirley Cook, of Vernon, and Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for defendant in error.

RANDOLPH, J.

This suit was filed by the defendant in error in the district court of Wilbarger county, seeking a divorce from the plaintiff in error. For convenience the parties will hereinafter be designated as in the trial court. On April 21, 1925, the trial court entered judgment decreeing a divorce of the plaintiff from the defendant. Prior to the decree being entered, the defendant filed her answer in the cause. No exception was taken to such judgment, and no notice of appeal given. Within the time provided by law from the date of said judgment, defendant filed her petition for writ of error with the district clerk of Wilbarger county, gave bond, etc., and now brings the case to this court for review.

Plaintiff has made application to us for permission to file his motion to dismiss the writ of error proceedings, and this the defendant contests. We have concluded to permit the filing of such motion, to determine whether or not the motion presents a question affecting our jurisdiction of the appeal. The defendant in her fourth proposition attacks the judgment of the trial court as being void because:

"It is without any pleadings to support it, and no pleadings ever having been filed by plaintiff in this cause stating a legal ground for divorce, and no pleadings ever having been filed in said cause on which a decree of divorce could be legally rendered."

Leaving off the formal parts, the plaintiff's first amended petition, upon which the judgment was rendered, states his ground for divorce as follows:

"(2) That on or about the 10th day of February, A. D. 1921, plaintiff was lawfully married to the defendant, then a single woman by the name of Lucy E. Robertson; that they continued to live together as husband and wife until on or about the 17th day of February, A. D. 1922, when by reason of the cruel and harsh treatment and improper conduct of defendant toward plaintiff he was forced and compelled to permanently abandon her, since which time they have not lived together as husband and wife.

"(3) That defendant owned a home and residence in the town of Vernon, where she lived when plaintiff married her, and by mutual consent they lived together in defendant's home, and defendant had a married daughter, Mrs. Carrie Easterling, who lived in Vernon, and who had a husband and several children, and, soon after plaintiff and defendant were married and took up their residence as aforesaid, plaintiff discovered that the said Carrie Easterling and her children were appropriating and carrying off the groceries that plaintiff provided for himself and defendant, and thereupon plaintiff remonstrated with defendant, and told her that he was not able to support her daughter's family, and asked her to stop such appropriation of such groceries; but defendant refused to interfere, and still permitted her said daughter to carry off whatever she wanted, and plaintiff was put to great expense and annoyance on that account, which defendant approved and encouraged.

"(4) That on or about the 5th day of August, 1923, her home having burned, the said Carrie Easterling and her family moved into the home of plaintiff and defendant, and took up her residence with them, over the protest of plaintiff, and appropriated anything on the place to her liking, with the full approbation and approval of defendant, and made a practice of abusing plaintiff at least once every day, and defendant refused to reprove her said daughter, or make any effort to have her behave, but rather encouraged her conduct toward plaintiff; that on account of the presence and conduct of said Carrie Easterling and her children life became insupportable for plaintiff in the circumstances, and defendant refused to evict said daughter and her family, but encouraged them to remain with plaintiff and defendant and do as they pleased, and when defendant would not request her daughter and family to move out of the house, plaintiff proposed to defendant that he would rent a suitable residence and move into same with defendant, and she could turn over her residence to her daughter, but this defendant refused to do; that plaintiff had planted some young shade trees in the yard of defendant's residence, and about the time plaintiff left defendant one of Carrie's boys was beating one of said trees with a baseball bat, and plaintiff told him to desist, when Carrie commenced a tirade of abuse of plaintiff, called him ugly names, and commanded him to say nothing to any of her children, when defendant took the part of her daughter and told plaintiff to get up, get out of the house, and leave.

"(5) That at and before the time he proposed marriage to defendant she represented herself to plaintiff as a widow, whose husband was dead, and did not inform plaintiff that she had ever been married since the death of her first husband, and plaintiff relied on her representation that her husband was dead, and did not know that she had been married since the death of her first husband, Mr. Robertson, when in truth and in fact she had since been married to a man by the name of Adams, from whom she was divorced; that if plaintiff had known that she was separated from her husband (and that he was still living) he would not have married defendant; that by reason of the facts hereinbefore alleged defendant was guilty of excesses, cruel treatment, and outrages toward plaintiff of such a nature as to render their living together insupportable."

Among the grounds upon which the courts are authorized to grant divorces by article 4631, V. S. T. C. Stats. 1914, and herein invoked are:

"1. Where either the husband or the wife is guilty of excesses, cruel treatment or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable.

"2. In favor of the husband, where his wife shall have been taken in adultery, or where she shall have voluntarily left his bed and board for the space of three years with the intention of abandonment."

The language of these subdivisions does not provide a form of pleading to be used in the pleading in the case, but is only naming the grounds upon which divorces may be granted. To bring a case within the purview of these subdivisions, the conduct and acts of the party against whom complaint is made must be specifically alleged. The facts must be specifically set out, so that the trial judge may have the opportunity of ascertaining whether or not the alleged cruel treatment, or abandonment, constitutes the conduct contemplated by the statute as cruel treatment, or abandonment; and if the matters of fact alleged in the petition fail to meet that test, and so furnish a legal ground for the divorce prayed for, if proved, then such petition is bad as against a general demurrer, and is subject to attack as being fundamentally erroneous.

These being the rules by which such petition is to be tested, does the petition in this case comply with them? We think not. Considering the general and specific allegations of the petition, we find that it violates the rule which requires that the acts and conduct of the defendant must be specifically alleged, as to abandonment, and as...