Therwhanger v. Therwhanger

• Decision Date: 22 October 1943
• Docket Number: No. 2415.,2415.
• Citation: 175 S.W.2d 704
• Parties: THERWHANGER v. THERWHANGER.
• Court: Texas Court of Appeals

Page 704

175 S.W.2d 704

THERWHANGER v. THERWHANGER.

No. 2415.

Court of Civil Appeals of Texas. Eastland.

October 22, 1943.

Rehearing Denied December 3, 1943.

Appeal from District Court, Haskell County; B. C. Chapman, Judge.

Suit by Evelyn Jeanette Therwhanger against Truman B. Therwhanger for divorce. From a judgment dismissing the suit on ground of plaintiff's lack of residential requirements, plaintiff appeals.

Reversed and remanded, with directions.

T. R. Odell, of Haskell, for appellant.

Ratliff & Ratliff, of Haskell, for appellee.

FUNDERBURK, Justice.

This is a suit for divorce and custody of a child filed April 1, 1943, by Evelyn Jeanette Therwhanger, an alleged resident of Haskell County, against her husband, Truman B. Therwhanger, who, it was alleged, "resides in Haskell County, but now is in the army as a mechanic, stationed at Lubbock, Texas", etc.

In advance of a trial of the case on its merits, the defendant filed a plea in abatement, which being heard was sustained and the suit dismissed. The ground of abatement was that plaintiff "had not resided in Haskell County, Texas, where this suit is pending, for the required period of 6 months, as provided by law in action for divorce; that on the contrary, said plaintiff had resided in Dawson and Lubbock Counties, Texas, with this defendant until on or about the 21st day of March, 1943, and for that reason this court does not have jurisdiction, as provided by law, over the subject matter of this suit."

From the judgment of dismissal plaintiff has appealed.

If the grounds of the plea in abatement should be conceded to exist, it would not follow that the court was without jurisdiction. Bona fide inhabitancy of the state for a period of twelve months and residence in the county where the suit is filed for six months next preceding the filing of the same, as provided in R.S.1925, Art. 4631, Vernon's Ann.Civ.St. art. 4631, are not jurisdictional prerequisites, but are facts constituting qualifications upon the right to maintain a divorce in any county upon any ground. Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198; Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 126 S.W.2d 626; Kent v. Kent, Tex.Civ.App., 143 S.W.2d 159; Prendergast v. Prendergast, Tex.Civ.App., 122 S.W.2d 710; Tucker v. State, 141 Tex.Cr. R. 428, 148 S.W.2d 1111. It seems reasonable, however, that lack of necessary residence may be pleaded as matter in abatement, rather than in bar of the right of divorce, and if so, of course, the designation of the ground of abatement as a want of jurisdiction may properly be treated as surplusage. We shall so regard it in determining the propriety of the court's action in sustaining the plea in abatement.

One other matter may be mentioned by way of preliminary. Had the case been tried on its merits, the burden of proof would, of course, have been on the plaintiff to establish by a preponderance of the evidence that she was, and had been for twelve months, a bona fide inhabitant of the state and had resided in Haskell County for six months next preceding the filing of suit. Since, however, the judgment was determined upon the trial of the plea in abatement, the burden was upon the defendant to establish by a preponderance of the evidence that plaintiff had not been a resident of Haskell County for six months next preceding the filing of the suit. 27 C.J.S., Divorce, p. 718, § 123.

Defendant testified to the effect that on September 23, 1942, he was inducted into the army and was at all times thereafter stationed at Lubbock, where, on November 8, 1942, his wife joined him and together they "occupied a rented apartment" to which had been taken "household bedding and silverware, clothing and things of that sort", and "a few dishes" and where they "ate and slept in the town of Lubbock" until the 2nd day of March, 1943, when, on a ten-day furlough, they both went to Haskell County, and the wife remained in Haskell County until the filing of the suit and the trial of the plea in abatement.

But for the testimony that defendant during all the time he was in Lubbock was in military service of the United States, the above testimony would, perhaps, be sufficient to support a presumption that he and his wife became residents of Lubbock County, from which it would follow, of course, that the wife had not resided in Haskell County for six months next preceding the filing of the suit. But in addition to the evidence showing that defendant during all the time he was in Lubbock — being all the time since leaving Haskell County — was in the military service of the nation, and, therefore, his dwelling there not necessarily voluntary, he testified that on the 21st day of August, 1942, after having been for several months in Dawson County, he and his wife brought all of their things back to Haskell County, where he rented a house, stored his things therein, and arranged for employment to begin there a little later unless before that time he was called into the army service. In short, he testified to facts confirmatory of the testimony of plaintiff, that he and she resided in Haskell County at the time when he was inducted into the military service. Thus was effectively destroyed any presumption that he acquired a residence in Lubbock County or that his wife by occupying an apartment with him in that county did so. Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763; Page v. Lockley, Tex.Civ.App., 176 S.W.2d 991. Without the aid of any such presumption, the evidence, we think, failed to raise any issue that Lubbock ever became the place of residence of either the defendant or the plaintiff. On the contrary, the undisputed evidence did raise a presumption, in no way rebutted, that Haskell County for more than six months next preceding the filing of the suit was the common place of residence of both plaintiff and defendant.

As all too often is the case, it is impossible to harmonize all that has been written regarding the meaning of "inhabitant" and "resided" as those words appear in R.S. 1925, Art. 4631. Under the facts of the instant case no question is presented as to whether the plaintiff was not a bona fide inhabitant of the state or had been such for twelve months next preceding the filing of the suit. The only question is: Was there evidence to raise the issue and support a finding that she had not "resided in the county where the suit is filed for six (6) months next preceding the filing of same"?

The word "resided" has been used in many different senses. As used in venue statutes of this State, its meaning has frequently been the subject of discussion in opinions of the Supreme Court. Houston Printing Co. v. Tennant, 120 Tex. 539, 39 S.W.2d 1089; Evans v. American Publishing Co., 118 Tex. 433, 13 S.W.2d 358, 16 S.W.2d 516; Taylor v. Wilson, 99 Tex. 651, 93 S.W. 109; Pearson v. West, 97 Tex. 238, 77 S.W. 944; Brown v. Boulden, 18 Tex. 431, 432. Revised Statutes 1925, Art. 1995, is a venue statute,...