Wauer v. Wauer, 6652

• Decision Date: 18 February 1957
• Docket Number: No. 6652,6652
• Citation: 299 S.W.2d 719
• Parties: Juanita WAUER, Appellant, v. Wesley WAUER, Appellee.
• Court: Texas Court of Appeals

Page 719

299 S.W.2d 719

Juanita WAUER, Appellant, v. Wesley WAUER, Appellee.

No. 6652.

Court of Civil Appeals of Texas, Amarillo.

Feb. 18, 1957.

Richard D. Bird, Childress, for appellant.

No attorney appearing for appellee.

CHAPMAN, Justice.

Appellee, Wesley Wauer, filed suit against his wife, Juanita Wauer, for divorce; for custody of their two minor children, a boy, Curtis Dan, age six, and a girl, Molly Beth, age four; and for division of their community property. Appellant, Juanita Wauer, filed a cross-action for divorce, for custody of the named children, for division of the community estate and for support payments from plaintiff for the children. Trial was to the court, which resulted in a judgment for divorce for appellee and a finding that 'these parties are not fit an proper persons to have care and custody of their children and it would be harmful to said children to place them in their care and custody.'

The children, were, by the court, placed in the custody and control of appellee's sister and brother-in-law, Raymond Hicks and wife, Hazel Hicks, with reasonable visiting privileges awarded to the parents at reasonable times and places. From this judgment appellant, Juanita Wauer, has perfected her appeal to this court upon five assignments of error, as follows:

'Point I.

'The trial court erred in admitting into evidence Plaintiff's Exhibit No. 1, over the objection of the defendant.

'Point II.

'The trial court erred in granting a divorce to plaintiff, for proof of sufficient grounds for divorce was not made by the plaintiff.

'Point III.

'The trial court erred in refusing to grant care and custody of the two minor children to the defendant, the natural mother of said children.

'Point IV

'The trial court erred in taking the minor children from both plaintiff and defendant, and awarding them to a third party.

'Point V

'The trial court erred in granting plaintiff a divorce for the reason that the court did not have jurisdiction in that plaintiff had not resided in Collingsworth County for six months immediately preceeding the filing of the suit for divorce.'

These assignments will be discussed in the order named.

Plaintiff's Exhibit Number One was accepted in evidence by the court below over objections of appellant that it was not relevant and material and referred to happenings prior to reconciliation of the couple and were condoned by appellee, Wesley Wauer.

This instrument, written in the first person, admittedly by appellant, related a series of indiscretions with an 'Ins' salesman climaxed by several days spent with in 'gal' where 'the weather was perfect and the tangy salt air invigorating.'

Appellant, on cross-examination, admitted the instrument contained her thoughts but claimed it was a composition she was entering in a contest. The record does not indicate what sort of contest.

Clearly the instrument was admissible against the objection that it was not relevant and material.

Any evidence that would help the trail court form an opinion concerning the fitness of appellant to have custody of minor children would be admissible against an objection of immateriality.

Whether the contents of the exhibit constituted fact or fiction it would give the trier of facts some insight into the character of the author for the purpose of determining fitness of one to have custody of children of tender years and whose character would naturally be influenced by their custodian. This statement is too academic to require the citation of authorities.

As against appellant's objections that the instrument 'refers to happenings prior to reconciliation of this couple and all happenings that occured prior to this reconciliation were condoned by Mr. Wauer,' we also hold the court below was correct in admitting the exhibit.

The testimony of Joe Wauer, father of appellee, given without objection, relates that Curtis Dan, the six year old boy of appellant and appellee talked about his mother's going off with 'some guy' and going to bed with him in a tourist camp. (S.F. p. 25.)

Though the record does not reveal exactly when this allegedly happened, it is clear that it was after the second separation. Under the law of this state the appellee condoned the acts of cruelty complained of before the reconciliation when he lived and cohabited with appellant subsequent thereto. But if the acts related by the little boy were true, and they were nowhere denied by appellant in the record, then the acts of cruelty occurring after separation revived the condoned acts of cruelty occurring prior to separation and made the exhibit admissible as against the objections that appellant had condoned the acts of cruelty related therein. Redwine v. Redwine, Tex.Civ.App., 198 S.W.2d 472.

The conduct of appellant, related above in disposing of her first assignment, is perhaps sufficient upon which to overrule assignment Number Two herein. But in addition to the experiences related in the exhibit and the testimony of Curtis Dan concerning his mother's conduct, we have the additional fact that appellant broke into her father-in-law's home by breaking the hook on the screen door and when discovered was hidden under the bed where her estranged husband slept and had under the bed with her a tire tool and lug wrench capable, according to the testimony, of...