Webster v. Webster

• Decision Date: 11 June 1969
• Docket Number: No. 14789,14789
• Citation: 442 S.W.2d 786
• Parties: Jay Russell WEBSTER, Appellant, v. Katherine Ann WEBSTER, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 786

442 S.W.2d 786

Jay Russell WEBSTER, Appellant, v. Katherine Ann WEBSTER, Appellee.

No. 14789.

Court of Civil Appeals of Texas.

San Antonio.

June 11, 1969.

Benjamin D. Lucas, San Antonio, for appellant.

Grant & Tippins, San Antonio, for appellee.

BARROW, Chief Justice.

This is an appeal from a decree of divorce rendered after a non-jury trial. Appellee was granted a divorce, custody of the couple's two minor daughters, child support of $60.00 per month, and approximately one-half of the community estate, including an interest in payments appellant might subsequently receive from his military retirement. Appellee was also awarded $475.00 for her attorney's fee.

Appellant asserts five points of error wherein he complains of three parts of the decree: the granting of the divorce; the division of his retirement pay; and the award for attorney's fee. He urges at the outset that appellee failed to prove a cause of action for divorce. As a cross-point, appellee says that appellant cannot assert this point in that appellant did not complain of this alleged error in his motion for new trial. We overrule this cross-point. It is now settled that where a motion for new trial is filed after a non-jury trial, appellant is not restricted to those assignments of error urged in his motion for new trial. Boswell v. Handley, 397 S.W.2d 213 (Tex.Sup.1966); Hoge v. Lopez, 394 S.W.2d 816, 817 (Tex.Civ.App.--San Antonio 1965, no writ).

It is fundamental that a divorce should not be granted by the trial court or be permitted to stand by an appellate court unless the evidence is full and satisfactory. It, therefore, is the duty of this Court to examine the entire record, to determine whether the evidence is full and satisfactory and of a nature to justify and support the decree granting the divorce. In doing so, however, we must not lose sight of the fact that the trial court had the vantage of having the parties before him and the opportunity to observe their demeanor and pass upon their credibility. Shaw v. Shaw, 402 S .W.2d 821 (Tex.Civ.App.--San Antonio 1966, no writ).

Appellee alleged that the couple were married in 1948, and in 1964 they separated and ceased to live together as husband and wife on account of the actions and conduct of appellant. She alleged that he was guilty of excesses, cruel treatment and outrages toward her of such a nature as to render their further living together insupportable. There are no findings of fact, but the record supports an implied finding that appellant was guilty of excesses, cruel treatment and outrages against appellee of such nature as to render their living together insupportable. The decree of divorce was therefore proper. Art. 4629(1), Vernon's Ann.Civ.St.

Both appellant and appellee were witnesses in this cause. Appellee testified that the parties separated in July, 1964, because of the excessive drinking of appellant. That in addition to his excessive drinking, which resulted 'in DWIs' and incarceration in jail, appellant would be gone all night without any explanation at least once a week. That he had a violent temper and humiliated appellee and the children in public. appellee testified that she finally left appellant in the best interest of their two daughters. appellant did not deny that he was guilty of such conduct and in fact admitted that to be fair, appellee had some grounds for the action. He emphatically denied that there was any chance they could ever live together again as husband and wife. Several unsuccessful attempt were made to reconcile before appellee brought this action in July, 1968. We conclude from this record that the evidence is full and satisfactory in support of the implied finding of the trial court.

At the time of the divorce, appellant was a Tech Sergeant (E--6) in the Air Force with over twenty-four years service. He was eligible to retire, although he had not done so and had no intention of doing so at that time. The trial court found that he had a vested right in his military retirement pay based on twenty-four years service. Since he had been married twenty of those years, the court found that 20/24ths represented the community interest in such retirement pay. Appellee was awarded 10/24ths interest of the amount which appellant was then entitled to receive had he retired on that date, 'if, as, when and during the time' appellant received retirement payments. Appellant urges that such retirement pay was not vested and, in any event, the court was without authority under Federal Law to award a...