With respect, I dissent. While I cannot disagree with my colleagues' legal citations, this case simply exceeds the bounds even permitted now by Section 3.01 of the Texas Family Code.
At the hearing, the wife was asked:
*Page 561"As of last night (the night before the divorce was granted), was he (the husband) continuing to live in the same house with you?"
She answered, "Yes."
Later her attorney asked her:
"What I'm wanting the court to know is that since the filing of the divorce he has lived in your house, you all have slept in the same bed, and had relations?"
To which she replied, "Yes."
Before the enactment of the section of the Family Code above alluded to, it was the public policy of this State to foster marriage and prevent separation and divorce. See citations in 20 Tex.Jur.2d Divorce and Separation § 4 (1960) at 347-348, and the conduct here would certainly have prevented a divorce. 20 Tex.Jur.2d Divorce and Separation § 55 (1960) at 399.
But even under the liberalized "no fault divorce" it was petitioner's burden to present facts entitling her to divorce. Austin v. Austin, 586 S.W.2d 937 (Tex.Civ.App. Austin 1979), rev'd on other grounds, 603 S.W.2d 204 (Tex. 1980).
This she failed to do, and I would reverse and remand this cause for a new trial holding that the trial judge exceeded his discretion in granting this divorce.