Warfield v. Warfield, 11328.

• Decision Date: 19 March 1942
• Docket Number: No. 11328.,11328.
• Parties: WARFIELD v. WARFIELD.
• Court: Texas Court of Appeals

161 S.W.2d 533

WARFIELD v. WARFIELD.

No. 11328.

Court of Civil Appeals of Texas. Galveston.

March 19, 1942.

Appeal from District Court, Galveston County; J. C. Canty, Judge.

Suit for divorce by Benjamin Merritt Warfield against Yvonne Beckner Warfield. From a judgment granting the divorce, defendant appeals.

Reversed and rendered.

Louis J. Dibrell, of Galveston, for appellant.

Charles W. Gill, of Galveston, for appellee.

GRAVES, Justice.

This appeal is from a judgment of the 10th District Court of Galveston County, sitting without a jury, granting the appellee a divorce from the appellant on the ground of cruel treatment. Other than as in the judgment recited, the learned trial court stated no findings of either fact or law, nor were any requested by either side.

The decree itself merely runs to the purport that "the court being of the opinion that the material allegations in plaintiff's (appellee's) petition are true;

"It is, therefore, Ordered, Adjudged and Decreed by the Court that the bonds of matrimony heretofore existing between said plaintiff, Benjamin Merritt Warfield, and said defendant, Yvonne Beckner Warfield, be and the same are hereby annulled and dissolved, and that the said plaintiff be and he is hereby divorced from the said defendant on the grounds of cruel treatment."

The wife, as such defendant below, appearing above as appellant, inveighs against the determination so adverse to her below upon these two points:

"I. Appellee failed to establish by full and satisfactory evidence that he had been an actual bona fide inhabitant of the State of Texas for a period of twelve months next prior to the time of the exhibition of his petition, and that he had resided in Galveston County, Texas, for more than six months next preceding the filing of his suit for divorce, as required by Article 4631 of the Revised Civil Statutes of the State of Texas, Vernon's Ann.Civ.St. Art. 4631.

"II. Appellee failed to establish by full and satisfactory evidence the existence of the grounds for divorce alleged in his petition and upon which he relied."

After a painstaking consideration of the record, especially the full statement of facts brought up with it, the first quoted point is overruled, upon the conclusion that the venue was properly alleged and sufficiently proven.

Appellant's sole dependence for authority in support of her contention to the contrary upon this question of venue, and consequent jurisdiction of the court to then entertain the suit, Gallagher v. Gallagher, Tex.Civ. App., 214 S.W. 516, is thought to be clearly distinguishable upon the facts from those shown here; that is, in the Gallagher case— there was no manifestation that the husband — who, in that instance, was a somewhat peripatetic United States army officer, like the appellee was in this case — intended to make San Antonio his residence, nor that he had done any act to indicate that he intended to do so; nor did he testify that he had ever, prior to instituting his suit for divorce, made any declarations to any person that he intended to make San Antonio his home, hence, of course, there had been no corroboration of what, if it existed at all, had been a purely subjective purpose on his part to reside there, and that appears to have been to take effect only after he got out of the army at a later date.

Whereas, the appellee here testified that he had, several days subsequent to his arrival in Galveston after his army assignment there had become effective, concluded that he liked the town, and then and there decided that he would make it a place of residence. He was shown by the uncontroverted testimony of a number of corroborating witnesses, most of them his fellow-officers and associates in the army, others being people with whom he did business, to have stated to them that he had adopted and intended to maintain Galveston as his residence; that he proceeded at that very time to make it so, rented an apartment there, for which he bought furniture, and married the appellant, establishing the home wherein they had lived as husband and wife for one whole year before he exhibited his petition for divorce in this suit.

Under the rule subsequently enunciated by the same court that had decided the cited Gallagher case, it is held that these differing conditions constituted a sufficient compliance with R.S. Article 4631. That court, in the ensuing case of Morehouse v. Morehouse, Tex.Civ.App., 111 S.W.2d 831, 833, upon the legal equivalent of the same state of facts, thus in effect so held: "The record in this cause shows that A. B. Morehouse came to Bexar county, Tex., more than one year before the divorce suit was filed. If at the time of his moving to Texas it was his intention to make his permanent domicile here, we are of the opinion he could do so. His living in Bexar county after retirement is some proof of that intention. The opinion in Gallagher v. Gallagher, Tex.Civ.App., 214 S.W. 516, points out that a soldier can abandon his domicile or origin and select another."

An examination of the evidence relating to point two, however, convinces this court that it was not sufficiently full and satisfactory to warrant this divorce to the husband as for cruel treatment by the wife, as required by ...