Howell v. Howell

MONTEITH, Chief Justice.

This action was brought by appellant, Alma Sorsby Howell, for divorce from her husband, A. S. Howell, Sr., on the grounds of such cruel treatment and outrages on the part of appellee as to render their living together as husband and wife insupportable. On the trial .of the case, appellant testified to numerous acts of cruelty on the part of appellee, including the fact that appellee had cursed and abused her in front of her son, Scott Howell. Appellee answered by a general denial, and on the trial, he either positively denied the acts of cruelty testified to by appellant, or reasonably explained them. No witnesses were called by appellant to corroborate her testimony, and her son, Scott Howell, who *617was called as a witness by appellee, denied that the acts testified to by appellant had occurred in his presence.

On the trial of the case, a jury, in answer to a special issue submitted, found that the acts and conduct of the defendant toward the plaintiff did not constitute such excesses, cruel treatment or outrages as to render their living together as husband and wife insupportable. Pursuant to this verdict of the jury, the trial court rendered judgment denying the divorce.

It has been uniformly held by the courts of this state that in a divorce case, the trial court is clothed with more discretionary power in determining the sufficiency or insufficiency of the evidence adduced to warrant a decree than perhaps in any, other form of action, and that an appellate court may not revise that discretion in the absence of a showing of a clear abuse thereof on the part of the trial court. Lloyd v. Lloyd, Tex.Civ.App., 107 S.W.2d 1047; Scannell v. Scannell, Tex.Civ.App., 117 S.W.2d 538; Blackmon v. Blackmon, Tex.Civ.App., 11 S.W.2d 533.

In the case of Scanned v. Scanned, supra, the court in its opinion said [117 S.W.2d 543]: “It has been held many times in this state that under our statutes, the court will render judgment only upon full and satisfactory evidence sustaining the allegations of the petition, as provided in Article 4632, R.C.S. The courts are not 'bound even by a finding of a jury; they are only advisory, * * *. The appellate courts may not revise that discretion in'the absence of a clear abuse by the trial court. In the nature of our present procedure, these matters have seldom reached the Supreme Court.”

In this case, the trial court chose to submit to the jury the one ultimate controlling issue of fact, namely, whether the conduct of appellee toward appellant had been such as to render their living together as husband and wife insupportable, rather than submit each evidentiary fact and then group them himself after the jury had returned its answer. Austin v. DeGeorge, Tex.Civ.App., 55 S.W.2d 585; Service Mutual Ins. Co. of Texas v. Territo et al., Tex.Civ.App., 147 S.W.2d 846; City of Abilene v. Moore, Tex.Civ.App., 12 S.W.2d 604, writ refused; The issue as framed conforms to the' basic ground of divorce, procedure in divorce trials and the answer thereto is amply supported by the evidence.

Under the rule that in a divorce case the: trial court is clothed with more discretionary power in determining the sufficiency or insufficiency of the evidence to warrant the decree than perhaps in any other form of action, the courts áre not bound even by the finding of a jury, which are, in divorce cases, only advisory. Scannell v. Scannell, Tex.Civ.App., 117 S.W.2d 538.

In a divorce action the form of the issue submitting the grounds of divorce should not be examined with the critical severity resorted to in other forms of actions to determine whether the opposing party is entitled to have them split up into various evidentiary elements.' It should be sufficient that the controlling issues pleaded as grounds of divorce be fairly submitted in the terms in which they are pleaded. Lloyd v. Lloyd, Tex.Civ.App., 107 S.W.2d 1047.

In this case ther.e was a jury finding, amply supported by the evidence, finding, in substance, from a material conflict of the evidence, that the acts and conduct of the defendant toward the plaintiff did not constitute such excesses, cruel treatment, or outrages of such a nature as to render their further living together as husband and wife insupportable.

This finding,, after a full hearing on the facts, must be construed as an affirmative finding that there was not such “full and satisfactory evidence” in the record as would authorize the granting of the divorce sought by appellant.

Taking into consideration the type of this case, the finding of the jury, and the rendering of judgment on what' we deem to be full and satisfactory evidence, it follows that in our opinion the judgment of the trial court should be in all things affirmed.

Affirmed.

GRAVES, J. dissents.