Vickerstaff v. Vickerstaff

• Decision Date: 26 May 1965
• Docket Number: No. 5695,5695
• Citation: 392 S.W.2d 559
• Parties: Leonard VICKERSTAFF, Appellant, v. Barbara VICKERSTAFF, Appellee.
• Court: Texas Court of Appeals

Page 559

392 S.W.2d 559

Leonard VICKERSTAFF, Appellant, v. Barbara VICKERSTAFF, Appellee.

No. 5695.

Court of Civil Appeals of Texas, El Paso.

May 26, 1965.

Rehearind Denied June 23, 1965.

Second Motion Denied July 14, 1965.

Lee Arnett, Odessa, for appellant.

Garland Casebier, Midland, for appellee.

CLAYTON, Justice.

Appellee filed suit in the District Court of Midland County, Texas, asking for a divorce from appellant on the grounds of cruel treatment, for a division of property of the parties and attorney's fees. No children are involved. The trial court granted the divorce and divided the community and separate estates of the parties and awarded appellee her attorney's fees. From said jusgment this appeal is taken.

The appellant has grouped his points of error, and we will attempt to follow that grouping. Group One covers Points Nos. One, Two and Three, that there is no evidence, or insufficient evidence of cruel treatment of such a nature as to entitle appellee to a divorce, and the decision of the court was unsupported by full and satisfactory evidence. These points are overruled. This cause was tried before the court without a jury, and the court specifically found that 'defendant was guilty of such excesses and cruel treatment toward plaintiff as to render their further living together insupportable.' Without attempting to set out the testimony in detail, the above finding of fact is amply supported in the evidence and justifies the court's conclusion as a matter of law that the appellee was entitled to a divorce from the appellant.

The next group of points, including Points Four through Six, relates to the court's finding that appellant and appellee were only temporary residents of New York between August 10, 1959 and January 23, 1962, the appellant maintaining that there is no evidence, and insufficient evidence, to support such finding, but that as a matter of law the parties were actually domiciled in New York during that period of time. Residence is a lesser included element within the technical definition of domicile. While residence signifies living in a particular locality, domicile means living in that locality with the intent to make it a fixed and permanent home. 21 Tex.Jur.2d 62, Domicil, § 2. While living in Texas before going to New York the parties bought a home in Midland, Texas, where they both worked. Appellant was offered a position in New York by his employer, Templeman, and they left Midland for New York about August 10, 1959 and remained in New York until about January 23, 1962, at which time they returned to Texas. Appellant testified that at the time he left Midland he anticipated that the New York job would be a permanent one, and that he did not have in the back of his mind that some day he might return to Midland for 'retirement or something of that sort', even though he was very fond of Midland. However, he wrote a number of letters to his brother-in-law covering the period of time from August, 1959 to January of 1962, in which he used such expressions as: 'We do not feel it wise to sell the house as something may well go wrong with the Templeman deal * * * Should that happen, we can always come back here and start all over again'; referring to appellee he writes: '* * * she wants to know why in hell we don't move back to Texas while we are at it. Good question-may do yet' and 'Barb is whooping for joy at the thought of being back in her own home'; again, '* * * if not, I'll go into semiretirement in Midland for awhile to enjoy our house and see if this little Texas town is really as fascinating as Barb and I feel it is'; and * * * if this does not result in a change of job, then Barb and I will likely take off back to Texas and semiretirement.' From these expressions it cannot be said that the parties in this cause were living in New York with 'the intention to make it a fixed and permanent home' and we must uphold the trial court's finding that appellant and appellee were only temporary residents of New York between August, 1959 and January, 1962. This conclusion, we believe, is not at variance with the holding in Prince v. Inman, 280 S.W.2d 779 (Tex.Civ.App., 1955; n. w. h.), cited by appellant. Points of Error Four through Six are overruled.

Group Three of appellant's Points of Error encompasses Points Seven through Twenty-six, and charge the court with error in determining the status of the properties of the parties as separate and community property. Also, Group Four of Points, consisting of Points Twenty-seven through Thirty, attack the court's determination of the status of properties. All these points have in common the assertion that there is no evidence, or insufficient evidence, to support the court's findings. We have said in The Travelers Ins. Co. v. Charles Cecil Miller, Tex.Civ.App., 390 S.W.2d 284:

'* * * Appellant makes the dual assertion that there is no evidence to support this finding, or that the evidence is insufficient to support it. When such dual assignment is made, we must first dispose of the 'no evidence' contention by looking only to the evidence favorable to such finding. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660. This is a question of law as distinguished from a question of fact, and thus its determination requires either affirmance or rendition, rather than remand for a new trial. Being a question of law, it is reviewable by the Supreme Court. A determination of the question of the sufficiency of the evidence is said to be a fact question in which courts of civil appeals are final, and such a determination calls for either affirmance or remand for new trial-never rendition-and it is determined by looking to all of the evidence to see if it is factually too weak to support the finding made by the jury.'

Keeping in mind the admonitions contained in the foregoing quotation, we must also make note of the following data in treating these points: The parties were married in Canada, where both were living and working, on September 1, 1958; they were separated on August 23, 1962, while living in Texas; in the meantime, appellant and moved to Midland, Texas in January, 1959, where he had lucrative employment by January 15, 1959; appellee joined him in Midland, Texas on March 10, 1959, where they bought a home on April 8, 1959, which they owned until divorced; from August 10, 1959 to January 23, 1962, they lived and worked in New York, returning to Midland therefrom.

With the exception of the home of the parties there is no real property involved in the rights of either party. The appellant lists some 115 transactions in securities by one or the other, or both, of the parties,-stocks, accumulative and mutual funds, bonds and debentures, and a note. Appellant here contends that transactions Nos. 1 through 18 took place in Canada and under Canagian law constituted his separate property. Also, that transactions Nos. 26 through 96 took place while the parties were domiciled in New York, a common-law state, and became solely the properties of the husband under New York law. We have heretofore treated and rejected the matter of a domiciliary status of the parties in New York. In his argument under this point, appellant claims: 'The burden of proof was clearly upon Plaintiff (appellee) to establish her rights to any of the property acquired in these transactions. This burden has not been met.'

Appellee counters with the following 'fundamental principles of law which govern rights of married people in property acquired before, during and at the time of dissolution of marriage:

'First: When a divorce is sought in Texas, then all the property of the parties at the time of dissolution of the marriage is presumed to be community property, and the burden of proving the contrary is on the party who seeks to establish...