Velasco v. Haberman, 04-85-00505-CV

• Decision Date: 20 November 1985
• Docket Number: No. 04-85-00505-CV,04-85-00505-CV
• Citation: 700 S.W.2d 729
• Parties: Barbara J. VELASCO, Relator, v. Honorable Carol R. HABERMAN, Respondent.
• Court: Texas Court of Appeals

Page 729

700 S.W.2d 729

Barbara J. VELASCO, Relator, v. Honorable Carol R. HABERMAN, Respondent.

No. 04-85-00505-CV.

Court of Appeals of Texas,

San Antonio.

Nov. 20, 1985.

Oliver S. Heard, Jr., Richard R. Orsinger, Heard, Goggan & Blair, San Antonio, for relator.

Gene Toscano, San Antonio, for respondent.

Before ESQUIVEL, BUTTS and DIAL, JJ.

OPINION

On Relator's Petition for Writ of Mandamus

ESQUIVEL, Justice.

This is an original mandamus proceeding. It arises out of a divorce proceeding that is now pending between relator and her husband, Ralph E. Velasco, Jr., the real party in interest. Mr. Velasco brought a divorce action against relator based upon insupportability. See TEX.FAM.CODE ANN. § 3.01 (Vernon 1975). Relator countersued for divorce on the same ground, and subsequently, on October 24, 1985, she filed an amended countersuit raising the grounds of adultery and cruelty. See TEX.FAM.CODE ANN. §§ 3.02 and 3.03 (Vernon 1975). Insupportability was retained as an alternative ground in the amended pleading.

Relator's attorney took the oral deposition of Mr. Velasco on October 23, 1985. During the course of the deposition he asked Mr. Velasco whether he had committed adultery, whether he had slept with a Ms. Levens on business trips, and whether he had bought gifts for Ms. Levens or paid her bills. After each question Mr. Velasco was instructed by his attorney not to answer, and he refused to do so. Two days later, relator filed a motion to impose sanctions for failure to answer the deposition questions. At the hearing on the motion relator also asked the trial judge, the Honorable Carol Haberman, respondent in this proceeding, to direct Mr. Velasco to answer the questions. Judge Haberman entered an order ruling that Mr. Velasco must again sit for his deposition, but that relator's counsel would be permitted to ask only five questions relating to adultery and marital fault. This mandamus proceeding followed alleging that the respondent had abused her discretion in limiting relator's inquiry into these matters to five questions.

This court may direct a writ of mandamus to issue against a trial court to correct a clear abuse of discretion in a discovery proceeding. Barker v. Dunham, 551 S.W.2d 41, 42 (Tex.1977). This is true not only where the trial court order improperly grants discovery, but the writ may also issue where the trial court improperly limits or denies discovery. Lindsey v. O'Neill, 689 S.W.2d 400, 402 (Tex.1985); Allen v. Humphreys, 559 S.W.2d 798, 804 (Tex.1977); Barker v. Dunham, 551 S.W.2d at 46.

TEX.R.CIV.P. 166b(2) describes the scope of discovery. Subsection (a) provides, in part:

Parties may obtain discovery regarding any matter which is relevant to the subject matter in the pending action whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.

The Texas Supreme Court has ruled that in a fault-based divorce, fault in the breakup of a marriage may be considered by the trial court in dividing the parties' property. Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981); Young v. Young, 609 S.W.2d 758, 762 (Tex.1980). Evidence of sexual misconduct is relevant when adultery is alleged as a ground for divorce. Bell v. Bell, 540 S.W.2d 432, 436 (Tex.Civ.App.--Houston [1st Dist.] 1976, no writ). Sexual misconduct has also been held to be evidence of insupportability. Elrod v. Elrod, 517 S.W.2d 669, 672 (Tex.Civ.App.--Corpus Christi 1974...