McGlathery v. McGlathery

429 S.W.2d 187, 1968 Tex. App. LEXIS 2553
CourtCourt of Appeals of Texas
DecidedMay 20, 1968
DocketNo. 7853
StatusPublished
Cited by3 cases

This text of 429 S.W.2d 187 (McGlathery v. McGlathery) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGlathery v. McGlathery, 429 S.W.2d 187, 1968 Tex. App. LEXIS 2553 (Tex. Ct. App. 1968).

Opinion

CHAPMAN, Justice.

This case is before us upon appeal by Ethel Irene McGlathery, defendant below from a judgment for divorce awarded C. M. McGlathery against her in a case tried to the court. Their community property was also divided between them in the decree. Appellant’s first point asserts “* * the evidence adduced from the trial was insufficient to show appellant had been guilty of such cruel treatment toward ap-pellee as to render their living together insupportable.”

Art. 46321 provides, inter alia, that: 'Tn divorce suits * * * the decree of the court shall be rendered upon full and satisfactory evidence, upon the judgment of the court affirming the material facts alleged in the petition.” Paragraph III of the petition alleged: “Plaintiff has conducted himself with propriety, doing his duty as a husband, treating defendant with kindness, but, notwithstanding his conduct, defendant has been guilty of such cruelty and excesses toward this plaintiff as to render their further living together insupportable.”

A general denial was pleaded against the third paragraph of the petition, thereby joining issue upon such allegation.

Art. 4629 relates six grounds upon which a divorce may be granted in Texas. The first one provides: “A divorce may be decreed * * *:

(1) where either party is guilty of excesses, cruel treatment, or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable

Obviously the allegations of plaintiff’s petition based its grounds for divorce upon No. (1) just quoted of the six statutory grounds, so we must examine the evidence to determine if it was sufficient. In doing so there are some established general legal principles by which we must be guided. The case law appears to be uniform in holding a trial court and appellate court must require compliance with that part of Art. 4632 providing the decree of divorce [189]*189shall be rendered upon full and satisfactory-evidence. Hickman v. Hickman, 20 S.W.2d 1073 (Tex.Civ.App.—Waco, 1929, n.w. h.); Scannell v. Scannell, 117 S.W.2d 538 (Tex.Civ.App.—Fort Worth, 1938, n.w.h.); Kreiter v. Kreiter, 137 S.W.2d 184 (Tex.Civ.App.—Galveston, 1940, n.w.h.) ; McGinnes v. McGinnes, 322 S.W.2d 417 (Tex.Civ.App.—Austin, 1959, n.w.h.).

It has been held that the “full and satisfactory evidence” provided in Art. 4632 is directed to the mind of the court. McGinnes v. McGinnes, supra; Moore v. Moore, 22 Tex. 237.

Evidence may be full and satisfactory even though not uncontradicted, Gomez v. Gomez, 234 S.W.2d 941 (Tex.Civ.App.—El Paso, 1950), and it may have this quality even though the evidence be only the uncorroborated testimony of one of the spouses contradicted by the other. Gomez v. Gomez, supra; Mayen v. Mayen, 177 S.W.2d 240 (Tex.Civ.App.—El Paso, 1943, n.w.h.); Mortensen v. Mortensen, 186 S.W.2d 297 (Tex.Civ.App.—San Antonio, 1945, n.w.h.); Humphreys v. Humphreys, 200 S.W.2d 453 (Tex.Civ.App.—Texarkana, 1947, n.w.h.).

In Mortensen v. Mortensen, supra, the Court of Civil Appeals of San Antonio speaking through Mr. Justice Norvell now of our Supreme Court held: “* * * we take it that the rule is that this court may examine the statement of facts to determine whether or not the evidence is full and satisfactory. In so doing, we are not necessarily bound by the trial court’s findings although they are entitled to great deference by this court. When, however, in making this examination, we are confronted by testimony of one witness which is directly contradicted by that of another witness, we must accept the trial court’s decision upon the point, as we possess no authority to pass upon the credibility of witnesses and the weight to be given their testimony.” The same court speaking through the same justice in Ellis v. Ellis, 225 S.W.2d 216 (Tex.Civ.App.,1949) also held it is the duty of the trial judge to pass upon the credibility of the witnesses. For other cases holding that the fact finder, whether the court or jury, has wide discretion in resolving the credibility of contradicting witnesses see Harrell v. Harrell, 206 S.W.2d 109 (Tex.Civ.App.—Galveston, 1947) ; Kreiter v. Kreiter, supra; Scannell v. Scannell, supra; Hickman v. Hickman, supra.

Our court has held that it is impossible to lay down a precise rule by which a given state of facts discloses cruelty but that the true test is whether the treatment rendered further living together insupportable. Ingham v. Ingham, 240 S.W.2d 409 (Tex.Civ.App., 1951); citing McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459 (Tex.Com.App., Sec. A, 1931, opinion adopted). Our court in the same case also held the term “insupportable” is that which is incapable of being supported or borne, unendurable, insufferable, intolerable, citing Bobbitt v. Bobbitt, 291 S.W. 964 (Tex.Civ.App.—Dallas, 1927).

Keeping in mind the above rules, the evidence shows that the parties were not living together normally as husband and wife, had occupied separate bedrooms since 1962, and were just tolerating each other. He was cooking his own breakfast, preparing his lunch and part of the time they were going out for their evening meal. After their bank account was depleted in buying new clothes and attending their son’s wedding in California, appellee’s wife gave a check on their joint account for a new refrigerator without discussing the purchase with him, knowing the account contained only about $30.00. The check was returned for insufficient funds and a few days later she gave other checks for taxes on the defunct account, causing those checks to also be returned and consequent further embarrassment to him. She then called his superior at the Air Base where he was employed and told him her husband would not pay his debts. When he tried to [190]*190talk to her about such call she told him she was going to make him cough up “* * * some of that money,” and continued to make calls to his superior.

On the 11th of November, 1966, while he was sitting in the den of their home on a holiday where the T.V. was located his wife came in and said: “Why don’t you get up and find you a place to live,” which he did. About two or three months after he moved out of their home, at her suggestion, she had the police get him out of bed at 3:15 A.M. to come to their house. Mrs. McGlathery suffers with a rare disease called myosinia graphos and contended she called him because she was having a crisis. He testified after he went over to their house she refused to go to a hospital, that he observed no crisis, there was no reason for getting him out of bed at that time of the morning, and she told him, “I can get a-hold of you, I know how to get a-hold of you.”

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429 S.W.2d 187, 1968 Tex. App. LEXIS 2553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcglathery-v-mcglathery-texapp-1968.