Wells v. Wells, 9415.

• Decision Date: 24 November 1943
• Docket Number: No. 9415.,9415.
• Citation: Wells v. Wells, 177 S.W.2d 348 (Tex. App. 1943)
• Parties: WELLS v. WELLS.
• Court: Texas Court of Appeals

177 S.W.2d 348

WELLS v.WELLS.

No. 9415.

Court of Civil Appeals of Texas. Austin.

November 24, 1943.

Appeal from District Court, Fifty-first District, Tom Green County; Jno.F. Sutton, Judge.

Suit for divorce by Newt Wells against Virgie Lee Wells.From a judgment granting plaintiff a divorce, defendant appeals.

Reversed and case dismissed without prejudice.

Brin & Cate, of Terrell, for appellant.

Wm. E. Davenport and W. A. Johnson, both of San Angelo, for appellee.

McCLENDON, Chief Justice.

This is a divorce suit.The appeal is by the wife from a judgment granting the husband a divorce, in a trial to the court.

The sole ground for the divorce was three years desertion by the wife; and the appeal presents but two issues; whether plaintiff established "upon full and satisfactory evidence"(R.C.S. Art. 4632):

1.That he resided in Tom Green County for "six (6) months next preceding the filing of the suit"(R.C.S. Art. 4631, Vernon'sAnn.Civ.St. art. 4631); and

2.The material allegations supporting his claim of three years abandonment.

Since we are deciding the first issue in the negative, it will not be necessary to consider the second.

The testimony of plaintiff and defendant was the only evidence adduced at the trial.That of plaintiff upon this issue was to the following effect: They were married in Kaufman County, Texas, October 7, 1932, and lived at Terrell (that county) until October 8, 1937, when the separation took place.He was working for a broom factory at Terrell for about 15 years "off and on."He had lived in Childress about a year, from which place he was inducted into the army about nine months before the trial; and for the preceding two years he worked on a farm in Rockwall County.In the first registration (1940) for army service, he registered in Rockwall County. but "used Terrell, Kaufman County," as his home.Upon being drafted he was sent to Mineral Wells, where he remained only a few days and was then transferred to the Concho Air Field, near San Angelo, where he had been quartered at the air field barracks ever since (nearly nine months).His evidence in support of his residence in Tom Green County is embodied in the following:

"Q.Since you came out here have you made up your mind as to what place you are going to make your home?A.If I live through the war I have decided to make San Angelo my home.

"Q.Who did you ever tell that to?A.To the girl I have been going with.

"Q.Have you made an effort to find a place?A.Yes, if I get over this I will find a place and call this my home.

"Q.Do the girl's people live here?A.No, she has a brother in the army."

On cross-examination he testified: This girl is in the court room "sitting back there with the dark glasses on"; he intended to marry her if he was granted a divorce, and "if nothing happens"; he was going with her "pretty steady" and had been "since probably a month after I came here"; he visited with her whenever he had time.(Incidentally, it may be noted that defendant alleged in her answer that "the real reason and cause of plaintiff's suit for divorce is because he has become enamored of another dusky damsel, whom he has promised to marry, if and when he has secured his divorce from defendant"; an aggravating circumstance, however, may have been the fact that defendant was getting $22 per month of his army pay.He admitted writing to defendant for a loan of $15, explaining that this was "because she had put in for her allotment unknown to me and I thought it was nothing but right that she give me some part of the money.")

The girl was not called as a witness.

The instant case is ruled by the decision in Tex.Civ.App., Gallagher v. Gallagher, 214 S.W. 516, with the holdings in which we are in complete accord.The opinion is a well considered one by Chief Justice Fly of the San Antonio court, shows careful research and gives an extensive review of the authorities upon the subject of the establishment of a residence by one in the military service at a place where he has been stationed.The facts of that case are not as strong, in some respects, against such establishment, as those at bar.The plaintiff there had been in the army much longer, had been stationed at San Antonio (the place he claimed as his residence) for about two years, and his wife had accompanied him there.The gist of the decision...