Varner v. Varner

• Decision Date: 06 April 1904
• Citation: 80 S.W. 386
• Parties: VARNER v. VARNER.
• Court: Texas Court of Appeals

Page 386

80 S.W. 386

VARNER v. VARNER.

Court of Civil Appeals of Texas.

April 6, 1904.

Appeal from District Court, Limestone County; L. B. Cobb, Judge.

Suit for divorce by B. J. Varner against Jennie Varner. From a judgment denying relief, defendant appeals. Affirmed.

J. B. Kimbell, for appellant.

KEY, J.

Appellant brought this suit against appellee for the purpose of obtaining a divorce from the bonds of matrimony, and from a judgment against him he has appealed. The grounds relied on in his petition are stated as follows: "That plaintiff was married to defendant in January, 1901, and that they lived together until February, 1902, when she finally abandoned him. During their said married life plaintiff treated defendant with kindness and consideration; that defendant, though a strong and robust woman, never permitted plaintiff to engage in the sexual embrace with her long before she abandoned him as aforesaid, and perpetually denied him this right, her only reason being, as she alleged, that she did not intend to again become a mother; that defendant persisted in the course, and refused to accede to plaintiff's request." The statute of this state, in prescribing the grounds upon which a divorce may be granted, does not specify either impotence or refusal to submit to sexual intercourse. However, it authorizes a divorce when either husband or wife is guilty of "excesses, cruel treatment, or outrages toward the other, if such illtreatment is of such a nature as to render their living together insupportable." In the case now under consideration the petition does not charge that the conduct of the defendant was an excess, cruel treatment, or outrage, nor that it was of such a nature as to render their living together insupportable; and it may be that the divorce was properly refused on account of the failure of the plaintiff to make those essential averments in his petition. But, if it be conceded that the petition was sufficient, we are of opinion, for reasons hereafter stated, that no reversible error is shown.

There is no statement of facts in the record, but the trial judge filed findings of fact to the effect that the averments in the plaintiff's petition, as set out above, were true. After finding the facts as alleged by the plaintiff, the court held "that the refusal of defendant to accede to plaintiff's solicitations was not an excess, cruel treatment, or outrage of such nature as to render their living together insupportable to plaintiff...