Young v. Young, 7621.

• Decision Date: 24 June 1931
• Docket Number: No. 7621.,7621.
• Citation: 41 S.W.2d 367
• Parties: YOUNG v. YOUNG.
• Court: Texas Court of Appeals

41 S.W.2d 367

YOUNG v. YOUNG.

No. 7621.

Court of Civil Appeals of Texas. Austin.

June 24, 1931.

Appeal from District Court, Williamson County; Harry A. Dolan, Judge.

Divorce suit by Willie Emma Young against C. L. Young. From an adverse judgment, plaintiff appeals.

Affirmed.

Allen & Wofford, of Taylor, for appellant.

D. B. Wood, of Georgetown, for appellee.

BLAIR, J.

Appellant sued appellee for divorce, alleging cruel treatment as grounds therefor; also alleging that July 1, 1920, appellee was adjudged to be of unsound mind and has continuously remained so, and is now confined in the State Hospital for Insane at Austin; but that the acts of cruelty relied upon for divorce occurred while appellee was sane and prior to the time he was adjudged insane.

The trial court sustained all facts above alleged; but refused the divorce on the ground that the present divorce statutes prohibit the granting of a divorce while either spouse is insane; hence this appeal.

The question of whether a divorce may be granted while either spouse is insane has arisen from the fact that the codifiers of the 1925 Revised Statutes grouped all grounds for divorce provided in articles 4631, R. S. 1911, with the provisions and limitations of articles 4632, R. S. 1911, as amended in 1913, in article 4629, R. S. 1925, prefacing this article with the following language: "Except where the husband or wife is insane, a divorce may be decreed in the following cases" (here follow the five grounds for divorce).

In the case of Wilemon v. Wilemon, 112 Tex. 586, 250 S. W. 1010, the Supreme Court construed articles 4631 and 4632, as amended in 1913, holding that a divorce might be granted against an insane spouse where the grounds therefor arose prior to insanity, except in cases where the ground for divorce was the ten-year separation statute.

The history of the above statutes and the court decisions thereon are reviewed by Judge Speer in his recent book on the Law of Marital Rights in Texas, and the following language of section 607 states our conclusion that a divorce may not now be granted where either spouse is insane:

"Insanity, it has been seen, is not a ground for divorce. On the contrary in adopting an amendment to our divorce statutes, making ten years living apart without cohabitation a ground for divorce, it was expressly provided the act should not apply where either party was insane. Under this amendment the Supreme Court held that the provision that the act had no application where either party was insane related only to the ten year ground amendment and did not operate to affect cases based upon other grounds. It had previously been held under the 1913 act that no divorce could be granted where either party was insane at the time. But the rule announced by the Supreme Court in the Wilemon-Wilemon Case has been followed allowing a divorce against an insane spouse where the ground arose prior to the insanity and was other than the ten years' separation. It has also been held, upon a review of the authorities up to that time, that an insane wife cannot, either in her own name or by next friend, maintain a suit for divorce at all.

"But a new aspect is put upon the entire situation by the act of codification, 1925. By that act all grounds for divorce are enumerated in one article (art. 4629) and the same are preceded by the following introductory clause:...