Villarreal v. Villarreal, 10174
| Decision Date | 02 December 1953 |
| Docket Number | No. 10174,10174 |
| Citation | 263 S.W.2d 819 |
| Parties | VILLARREAL v. VILLARREAL. |
| Court | Texas Court of Appeals |
John Noyola, Laredo, for appellant.
Leopoldo Villegas, Laredo, for appellee.
This is a divorce suit brought by appellee, Julio Villarreal, against his wife, Elodia H. Villarreal, who appeals from a judgment granting a divorce to appellee.
Appellee has filed no brief in this Court.
Appellee's sole grounds for divorce are contained in the following allegations of his Original Petition:
'That, without cause or provocation whatever Defendant, on or about the month of December 1949, in a fit of madness threw Plaintiff out of the home, with the intentions of seperating and living apart from him, and has continued so to live up to the filing of this petition.
'That since the month of December A.D., 1949, Plaintiff and Defendant have not lived together as husband and wife thereby permanently abandoning Plaintiff, and thereby constituting the three years abandonment under the third year statutes of abandonment.'
The following Special Issue and instruction were submitted to the jury:
'Do you find from a preponderance of the evidence that the defendant, Elodia H. Villarreal, for three years prior to the institution of this suit, on, to wit, the 26th day of January, 1953, leave the plaintiff, Julio Villarreal, with the intention of abandonment?
'In connection with this issue you are instructed that in order to constitute abandonment, it must appear that the parties ceased to cohabit together as man and wife: that such separation was brought about by the conduct of the defendant, that is to say, that she was guilty of such conduct that you would be justified in finding that she was at fault and to blame for the separation.
'Answer 'Yes' or 'No."
The Special Issue was answered 'Yes'.
Assuming but not deciding that the pleadings and jury finding are sufficient to authorize a divorce under Subd. (2), Art. 4629, V.A.C.S., providing that a divorce may be decreed the husband where the wife 'shall have voluntarily left his bed and board for the space of three years with the intention of abandonment' we are, nevertheless, of the opinion that appellee failed to make out his case by full and satisfactory evidence. Art. 4632, V.A.C.S.
In order to successfully invoke the statutory ground for divorce relied upon here it must be proved that the plaintiff neither caused, procured, nor consented to the separation. Bain v. Bain, Tex.Civ.App., Beaumont, 252 S.W. 252.
The record in this case shows that the parties were first married in 1927 and divorced in 1945 or 1946 and remarried in 1947....
To continue reading
Request your trial
-
Jackson v. Jackson
...Tex.Jur.2d 380, Sec. 34, 'Divorce and Separation'; Bain v. Bain, 252 S.W. 252 (Beaumont, Tex.Civ.App., 1923, no writ hist.); Villarreal v. Villarreal, 263 S.W.2d 819 (Austin, Tex.Civ.App., 1953, no writ hist.); and Miller v. Miller, 306 S.W.2d 175 (San Antonio, Tex.Civ.App., 1957, no writ T......
-
McGinley v. McGinley, 13052
...this subdivision requires proof that the complaining spouse neither caused, procured nor consented to the separation. Villarreal v. Villarreal, Tex.Civ.App., 263 S.W.2d 819. But this is not true in cases based upon Subd. 4. The reason for excluding time elapsing during the pendency of divor......