Hester v. HesterHester v. Hester
- Reporters:
- ,
- Before:
- Moore
From a judgment which granted a divorce to the plaintiff-husband on the ground of cruel treatment, the defendant-wife prosecutes this appeal. The case was tried by the court without the aid of a jury. No conclusions of fact and law were requested or filed.
Thе defendant predicates her appeal upon the ground that the evidence is insufficient to show that she was guilty of excesses, cruel treatment or outrages toward plaintiff of such a nature as to render their further living together insupportable. We аffirm the judgment of the trial court.
The record reveals that the parties were married on November 29, 1942, and lived together until their separation in February, 1964. There were no children under eighteen years of age and no complaint was made of the division of the community property. The present suit is the second divorce action instituted by G. K. Hester seeking a divorce from Mrs. Hester. The first suit resultеd in a judgment denying plaintiff a divorce. Because of the prior judgment dated January 13, 1965, it was conceded in the trial of the present case that all acts of defendant prior to January 13,1965, were res adjudicata as grounds for divorce in the present suit.
A summary оf the appellee’s testimony upon which the trial court based his decision that a divorce should be granted shows that the pаrties were separated in February, 1964. Thereafter, appellee filed his first suit for divorce. The trial in that case resulted in a jury vеrdict in favor of the ap-pellee, G. K. Hester. The trial court, however, denied the divorce by judgment dated January 13, 1965. The refusal of a divorce failed to effect a reconciliation and the parties continued to live separate and aрart. Shortly after the entry of the judgment in that case, appellant commenced harassing appellee by calling him over the telephone while he was at his work. In each instance, he testified, she would curse and ridicule him. He testified that the calls wеre made with such frequency as to interfere with his work; that she would call him at all hours of the night and again curse and abuse him and that the night сalls were made with such regularity and were so abusive as to interfere with his sleep and rest at night. On one occasion, she cаme to a bowling alley where he was visiting with friends and there created a disturbance by *450 cursing and abusing him and threatening personal violеnce; that on another occasion, she again came to the bowling alley and again cursed and abused him and threatеned personal violence; when he attempted to leave, she attempted to prevent him from leaving by holding onto thе door of his automobile; that as a result of this episode, he went to the police station to file a complaint; that she followed him and created an argument at the police station. He further testified that at no time during the separation had Mrs. Hеster ever made a good faithful attempt at reconciliation, but on the contrary, on each encounter, either in рerson or by telephone, she was always unfriendly and persisted in cursing, abusing and ridiculing him for refusing to live with her; that her conduct had causеd him to become highly nervous and emotionally unstable, and as a result, he had been compelled to seek treatment by a рhysician. He testified that because of her conduct and attitude toward him, he could not, under any circumstances, ever live with appellant again as her husband.
Appellant testifying in her own behalf disputed most of appellee’s testimony.
The trial court in granting the divorce found the evidence to be full and satisfactory. It is our duty to re-examine the evidence and to determine whethеr or not the facts testified to support the conclusion of legal cruelty as required by Articles 4629(1), Vernon’s Ann.Tex.St. and also whether same is full and satisfactory as provided by the provisions of Article 4632, V.A.T.S.
In McCullough v. McCullough (Tex.Com.App.), 120 Tex. 209, 36 S.W.2d 459, the court held that cruel treatment as grounds for divorce as рrovided by our statute is not confined to physical violence alone, but may consist of a series of studied and deliberate insults аnd provocations. It was further held that the question to be decided is whether the course of treatment constituted such excesses, cruel treatment or outrages as to render further living together by the parties insupportable, and that it was the duty of the trial сourt to weigh the course of conduct in the light of all the facts and circumstances, which included the character and refinement of the parties.
Whether the cruel treatment exists depends largely upon the particular facts of each cаse. Guerra v. Guerra (Tex.Civ.App.), 327 S.W.2d 625. Although any one of several acts standing alone might not be sufficient to constitute cruel treatmеnt, the accumulation of all of them may be sufficient to authorize the granting of a divorce on the ground of cruelty. Wauer v. Wauеr (Tex.Civ.App.), 299 S.W.2d 719; Emerson v. Emerson (Tex.Civ.App.), 409 S.W.2d 897. The question as to whether the conduct of one of the parties has been such as to render the further living togethеr of the parties insupportable is peculiarly one of fact to be determined by the court or jury trying the case. The credibility of the witnesses and the weight to be given their testimony must of necessity be left to the sound discretion of the trier of the facts, subject tо the power and duty of the reviewing court to pass upon the question of whether the evidence is full and satisfactory. Blackburn v. Blаckburn (Tex.Civ.App.), 163 S.W.2d 251; Alexander v. Alexander (Tex.Civ.App.), 373 S.W.2d 800.
After a careful examination of the entire record, we have concluded that the evidence offеred by the appellee was sufficient, if credible, to meet the standard of full and satisfactory as contemplated by the provisions of Article 4632, supra.
The question of the credibility of appel-lee’s testimony, as well as the question of whether or not the conduct of the appellant was sufficient as to cause appellee to suffer mental stress and anguish, are questions of fact, the determination of which is left in the discretion of the trial judge.
Where the testimony is conflicting, we have no authority to pass on the credi *451 bility of the witnesses and the weight to be given their testimony. In the absence of a showing of an abuse of discretion, the trial court’s findings thereon will not be disturbed on appeal. Ward v. Ward (Tex.Civ.App.), 352 S.W.2d 513.
The facts testified to by the appel-lee, having been determined by the trial court to be credible, were legally sufficient to support the decree of divorce.
The judgment of the trial court is affirmed.
DUNAGAN, C. J., not participating.