Struble v. Struble

• Decision Date: 23 December 1943
• Docket Number: No. 5624.,5624.
• Citation: Struble v. Struble, 177 S.W.2d 279 (Tex. App. 1943)
• Parties: STRUBLE v. STRUBLE.
• Court: Texas Court of Appeals

Page 279

177 S.W.2d 279

STRUBLE v.STRUBLE.

No. 5624.

Court of Civil Appeals of Texas. Amarillo.

December 23, 1943.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Suit for divorce by Robert Lawrence Struble against Dorothy Tucker Struble.From a judgment of dismissal, plaintiff appeals.

Reversed and rendered.

Simpson, Dorenfield & Fullingim, of Amarillo, for appellant.

HEARE, Justice.

This is a suit for divorce on the ground of abandonment, filed by appellantSeptember 7, 1943.He alleged that he was and had been an actual bona fide inhabitant of the State of Texas for twelve months and more next immediately preceding the time of the filing and exhibiting of his petition and that he was and had been a resident of Potter County, Texas, for more than six months next immediately preceding the date of filing and exhibiting said petition.Appellant further alleged that he and appellee were married October 20, 1937, at Elkton, Maryland; that without fault or cause on his part appellee voluntarily left his bed and board with the intention of abandoning and did completely abandon the plaintiff during the month of January, 1938; that said abandonment has been continuous for more than three years and in fact for the more than five years that have elapsed since January, 1938.Appellant alleged that no children were born to the marital union and that there were no property rights to be settled between the parties.Appellant alleged under oath that the whereabouts of appellee were unknown to him and also affirmatively alleged under oath that she is a non-resident of the State of Texas and prayed for citation by publication.Appellant specifically alleged that he is in the military service of the United States and that defendant is not.

After sufficient citation of appellee by publication, she made no personal appearance and filed no pleadings.Thereupon the trial court appointed Honorable Tom Seay, a practicing attorney before the court, attorney ad litem to represent the absent defendant and he filed a general denial on her behalf.On November 17, 1943, the court proceeded to the trial of the case without the aid of a jury and on the same day entered judgment dismissing the case from the docket of the court assigning his reason to be that appellant had failed to show by full and satisfactory evidence he possessed the legal qualifications required by Article 4631 of the 1925 Revised Civil Statutes of Texas, Vernon'sAnn. Civ.St. art. 4631, to entitle him to file and maintain the suit.The court recited in the decree that had appellant shown the necessary legal qualifications above referred to he would have been entitled to a decree of divorce on the ground of three years' statutory abandonment as provided in Section 2 of Article 4629, R.C.S. 1925.Appellant filed motion for new trial which was overruled.At appellant's request the trial court filed findings of fact and conclusions of law and the case is now properly before this court for review.

Among the findings of fact filed by the court below is the following: "4.I find that the evidence in the trial of said cause was sufficient to constitute `full and satisfactory' evidence and proof that the plaintiff, upon the merits of the cause, would be, under the law, entitled to decree of divorce, as prayed for in his petition, upon the statutory ground alleged and proved, of separation from and abandonment of plaintiff by defendant, and leaving his bed and board, for the space of three years, if the evidence was further sufficient under the law to constitute `full and satisfactory' evidence and proof that at the time said suit was filed, on September 7, 1943, plaintiff was, and for twelve months next immediately theretofore had been, `an actual, bona fide inhabitant' of the state of Texas, and a resident for six months in Potter County, in said State; but I find that the evidence is insufficient to establish, and does not establish, that fact, as is hereinafter more fully shown."

The conclusions of law of the court below are:

"1.I conclude as a matter of law that the facts established by the evidence in this cause are sufficient to entitle plaintiff to a decree of divorce, insofar as the merits of the cause are concerned, upon the alleged and proven ground of defendant leaving his bed and board, with intention of permanent abandonment, for over three years.

"2.But I further conclude, as a matter of law, that under the evidence plaintiff is not entitled to divorce from defendant, because the evidence shows, and I have in my Findings of Fact, found and certified above, that plaintiff on September 7, 1943, was not, and had not been for twelve months theretofore, an actual bona fide inhabitant of the State of Texas, nor a resident for six months in Potter County, as those terms are construed under the Divorce Laws of Texas, and therefore that such cause could not be properly instituted, and could not be maintained, and should have been dismissed, as has been done."

We have carefully reviewed the entire record, which includes a complete statement of facts, and are in agreement with the trial court that appellant is entitled to a decree of divorce if he has satisfied the residence requirements of Article 4631, R.C.S. 1925, Vernon'sAnn.Civ.St. art. 4631.It is therefore unnecessary to extend this opinion with quotations from or discussion of the evidence on the issue of abandonment.

Appellant complains that the trial court acted in an arbitrary manner when he accepted and gave full credence to appellant's testimony on the issue of abandonment but refused to believe appellant's corroborated testimony on the issue of residence.We do not place such a construction on the findings of the trial court.He finds as a fact and concludes as a matter of law that the appellant has failed to establish himself as eligible under the requirements of Article 4631 to maintain the suit in a Potter County, Texas court.In other words, taking all of the testimony at its face value, the trial court has concluded that it does not meet the requirements of the law in regard to residence, and therefore the case must be dismissed.Indeed any other construction of these findings and conclusions would be anomalous.With practically no corroboration, appellant was able to convince the court of all the material allegations of his petition, including the fact of abandonment by his spouse without just cause.Appellant's veracity and general reputation as a person worthy of belief were attested to by his commanding officer, his superior non-commissioned officers and others with whom he had been associated in military life over a period of from six months to more than a year.He was shown to be an outstanding soldier and had been recommended for Officer Candidate School.Practically all of his testimony on the issue of residence was completely and fully corroborated by persons against whom there is no suspicion or reason for discredit.It would be unreasonable to conclude that the trial court would see fit to believe testimony of the interested appellant concerning the abandonment, testimony on which there is little or no corroboration from other witnesses, and yet reject testimony of the interested appellant concerning his intentions and overt acts in relation to his residence, testimony which was completely and fully corroborated by a number of disinterested witnesses.There is no indication in the court's findings that he disbelieved any witness.All were carefully cross-examined by the attorney ad litem and by the court and there was no confusion or conflict in their testimony.The reasonable construction of the trial court's findings and conclusions, therefore, must be that he found the evidence insufficient as a matter of law to show appellant possessed with the necessary residence qualifications required by Article 4631.

Appellant, however, contends that under the undisputed evidence he, as a matter of law, has shown the residence requirements of Article 4631.It therefore becomes necessary for this court carefully to review such evidence and pass upon its sufficiency as a matter of law to determine whether or not appellant was entitled to prosecute his divorce suit on its merits.After having done so, we sustain appellant's contention.

According to the record, appellant is 31 years of age; he was originally a resident of New Jersey, the present home of his parents, and was engaged in the theatrical production business in Newark for a number of years immediately prior to 1940.Early in 1940appellant made a trip through Texas for the purpose of finding a good business location and place for financial investments.He spent a short time in Amarillo and then went to Wichita Falls, Fort Worth and Dallas.He spent about three weeks in Dallas, stopping at a downtown hotel, and while there formed the acquaintance of N. B. Doss of El Paso, who was visiting in Dallas. Appellant made known to Doss his desire and intention to find a suitable business location in Texas, particularly for a men's clothing store, and Doss attempted to interest him in his own home town.Appellant rejected El Paso as a location on the ground that he did not know anything about the language or custom of Spanish people and therefore considered it poor business policy to open a men's clothing store there.He mentioned Amarillo as a booming town.Doss testified in the case and fully corroborated appellant's statements concerning their meeting and conversations.Appellant then went on to California and later returned to New Jersey where he disposed of all his business interests.

Concerning his then intentions toward Texas he testified: "In the year 1940, when I came to Amarillo, at that time I formed the definite intention in my mind that I was going to change my domicile and come to Texas; I definitely made up my mind to do this; I was going to change my residence from my present home state of New...