191 S.W.2d 512 | Tex. App. | 1945
This is a suit for divorce and for custody of a minor child, instituted by appellant against appellee on the ground of cruel treatment. Appellee answered with general denial and by cross-action alleged cruel treatment against appellant and prayed for a divorce and custody of their minor son.
The cause was tried to a jury upon special issues. In answer to special issues one and two the jury found that Mrs. Marr had been guilty of excesses, cruel treatment and outrages toward the appellant, W. W. Marr, and that such conduct on her part rendered their future living together altogether insupportable. In answer to special issues three and four the jury made similar findings in favor of appellee against W. W. Marr, appellant. In answer to issue "C" the jury found that it would not be to the best interest of the minor to award his custody to appellee, Mrs. Marr.
Appellant filed a motion praying that no judgment be entered in the case for the reason that the jury had found each to be guilty of cruel treatment toward the other rendering their future living together insupportable. This motion was overruled. Appellee moved for judgment and prayed that the court disregard the jury's answers to special issues one, two and "C" because there is no evidence in the record supporting them. This motion was granted and judgment was entered granting appellee a divorce from appellant and awarding to her the custody, in the main, of their minor son. This action by the trial court forms the basis of this appeal.
It is appellant's contention that the finding by the jury that each party to the suit was guilty of cruel treatment toward the other makes applicable the doctrine of recrimination, barring both parties from a divorce. This rule of law is applied in most jurisdictions. In Texas, Arkansas, Pennsylvania, and Washington, however, the rule is relaxed to the extent that comparative rectitude is recognized. In Beck v. Beck,
In Dearth v. Dearth, 141 Pa.Super. 344,
We have carefully examined the record in this case and have reached the conclusion that the acts and conduct of appellee, the wife, toward the appellant, the husband, are insignificant when compared *514 to his conduct toward her, and though guilty of recrimination to some degree, her acts are not sufficient to bar a judgment in her favor. Therefore, in our opinion the trial court was justified in rendering judgment for appellee, based upon a jury verdict favorable to her.
Appellant cites the case of Hansen v. Hansen,
We have no such situation here, the jury in the case at bar found both parties guilty of cruel treatment toward the other, rendering their future living together insupportable, under a record showing clearly and conclusively that the parties were not equally at fault and whatever the recrimination chargeable to appellee, was small when compared to the provocation on the part of the appellant. Concisely stated, the trial court granted a divorce not contrary to a jury finding but to the party whose cause was established by the over-whelming proof in response to jury findings that both parties were entitled to a divorce.
The conclusion reached above is applicable with greater force to the action of the trial court in disregarding the jury's answer to special issue "C", finding that it would not be to the best interest of the minor to award his custody to appellee, his mother. Under the terms of R.S. Art. 4639, the determination of the proper custody of minors is a matter for the court to decide and not for the jury. Kesler v. McGuire, Tex. Civ. App.
In this case the trial court very properly disregarded the findings of the jury by awarding the minor son to the appellee, with right of appellant, the father, to have custody of said minor at specified times.
We have examined all other points advanced by appellant, they are without merit, and are respectfully overruled.
Judgment of the trial court is affirmed.