Pickens v. Pickens

261 S.W.2d 744, 1953 Tex. App. LEXIS 2013
CourtCourt of Appeals of Texas
DecidedSeptember 24, 1953
DocketNo. 4883
StatusPublished
Cited by1 cases

This text of 261 S.W.2d 744 (Pickens v. Pickens) 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
Pickens v. Pickens, 261 S.W.2d 744, 1953 Tex. App. LEXIS 2013 (Tex. Ct. App. 1953).

Opinion

WALKER, Justice.

The suit is for divorce and was brought by the appellee against the appellant. The cause was tried to the court without a jury and the trial court rendered, judgment that plaintiff, namely, Aubrey Frank Pickens be divorced from the defendant, Bessie Mae Pickens. From this judgment the defendant has appealed.

Opinion

Point 1 assigns as error that plaintiff’s ■residence was in Harris County and not in Polk County, where this suit was brought and tried, and that the trial court did not have jurisdiction of the cause under Article 4631, R.S.1925, as amended, Vernon’s Ann. Civ.St.

Putting aside evidence which might support this argument, there is, nevertheless, evidence of the following matters:

The plaintiff was born and reared in Polk County, and prior to the latter part of 1945 he had spent his entire lifetime in that county, residing with his parents as a member of their family. He completed his [745]*745schooling in 1945; at that time he was 18 or 19 years old. He had employment in Polk County during the following summer; but about October, 1945 he went to Houston, in Harris County, and secured employment at a foundry. He remained in this employment for about three months. During this time he resided in the household of a sister. He paid his sister no rent, but he did contribute toward the payment of the cost of the food consumed by the household. In January, 1946, he volunteered for service in the United States Army and was accepted, and he has been in the army since that time. He entered the service in Houston. It is his intention to be a professional soldier and thus, to remain in the army.

The only evidence about plaintiff’s movements after he entered the army before his marriage is his statement that he received his training at Camp Lucke, Louisiana.

Plaintiff and defendant were married on March 10, 1949. The marriage occurred at the home of the defendant’s mother, at Onalaska in Polk County. The defendant is about the same age as the plaintiff is, and her parents had resided in Onalaska for many years. The plaintiff, who had been acquainted with the defendant since childhood, was under the impression that the defendant’s home was the home of her parents.

The plaintiff and the defendant were together until about the 1st of June, and during this period they visited their families in Polk County and visited plaintiff’s sister in Houston. After this brief period the plaintiff returned to duty and was sent at once, or almost at once, to Germany and was stationed in Germany for more than three years. He returned to the United States from Germany on May 27, 1952. Shortly after his return to this country the plaintiff went to Onalaska to the home of the defendant’s parents and there he met the defendant. They went later to the home of the plaintiff’s parents in Livingston, also in Polk County, and on the 24th or 25th day of June separated after a quarrel. The plaintiff filed this suit on June 25, 1952.

The plaintiff and the defendant have spent only about three weeks together since their marriage. ¡

i

Afterward, the plaintiff went to Fort Sam Houston, Texas and from there was transferred to Camp Polk, Louisiana. He was still at Camp Polk when this case was tried.

The plaintiff’s parents have continuously resided in Polk County during the plaintiff’s lifetime, and when this case was tried had their home in Livingston.

The plaintiff said that his home is in and all of his life has been in Polk County; that he has lived in Polk County and claimed this as his home, though in the military service, for more than six months before he filed this petition; that he has claimed Texas as his home all of his life; that he has had no home that he claimed as his home except Polk County, for the last five, ten or fifteen years; that his father’s home was his home and he had never 'had or claimed any county for his residence except Polk County. He said that he had not considered Houston to be his home when he worked at the foundry during the three months immediately prior to his enlistment.

He said further that he and-the defendant had no house; that he and the defendant had spent no more than two or three nights in Houston together, on visits to relatives ; that he and his wife had never rented a room and had never had a home in Houston; and that he had no home, room-' ing house, or place to stop in Houston. The defendant said that they had never rented a room or an apartment in Houston.

These additional circumstances afford some confirmation for the plaintiff’s claim that his residence has always been in Polk County: In preparing the papers necessary to procure an allotment to the defendant for her support the plaintiff directed that the check for the allotment be sent to the defendant at Onalaska. (These checks [746]*746were sent to this address for a time. Later the checks were sent to the home of her sister in Houston, where defendant was residing, but later defendant directed that they be sent to Onalaska. Her reason is stated below). He named his wife as the person to be notified if he were killed, and he stated her address to' be Box 25, Ona-laska, Texas. His draft board was always in Polk County; he did not transfer from this board to a board in Harris County. The plaintiff and the defendant agreed at the time of their marriage that the defendant would save money from her allotment and that they would build a home in Polk County, at Onalaska or at Livingston.

• Some other evidence is referred to in the discussion following.

Point 1 is overruled. The circumstances support the trial court’s finding that said court had jurisdiction of this suit. The plaintiff’s residence within the meaning of Article 4631 was certainly in Polk County until he went to Houston in the latter part of 1945, and the trial court was authorized to find that plaintiff’s residence in Houston prior to' his enlistment was only temporary. As a soldier, the plaintiff was subject to orders, to go where he was directed, and his movements about and out of the State did not necessarily imply that he had established a new domicile out of Polk County. In fact, there is no conduct of his which shows that he ever attempted to- do so; his testimony is that he intended to keep his old domicile and residence, and his actions are consistent with this intention. The defendant says that except for short intervals, that is, week ends and visits in Polk County, she had lived in ¡Houston since the marriage and, indeed, that she had lived in Houston continuously since a date about two years before the marriage; and defendant seems to argue that she had thereby established a residence in Houston for the plaintiff and herself. The plaintiff did know that she had been in Houston because he had sent letters to her there in 1950, 1951 and 1952; but it does not appear that the plaintiff specifically authorized her to do this. He said that he objected to her being in Houston and told her so. The defendant said that “it wasn’t really discussed.” There is certainly no evidence that the plaintiff authorized the defendant to establish a home for them in Houston and it does not appear that she had ever told him that she had done so or would do so; and she had not, in fact, established a home in Houston for herself and the plaintiff. According to her testimony she had lived with relatives in Houston, both before and after the marriage, except for a short period when she had resided with the McDade family.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fuller v. Fuller
315 S.W.2d 167 (Court of Appeals of Texas, 1958)

Cite This Page — Counsel Stack

Bluebook (online)
261 S.W.2d 744, 1953 Tex. App. LEXIS 2013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pickens-v-pickens-texapp-1953.