This is an appeal from a decree of divorce rendered after a non-jury trial. Ap-pellee was granted a divorce, custody of the couple’s two minor daughters, child support of $60.00 per month, and approximately one-half of the community estate, including an interеst in payments appellant might subsequently receive from his military retirement. Appellee was also awarded $475.00 for her attorney’s fee.
Aрpellant asserts five points of error wherein he complains of three parts of the decree: the granting of the divorce; the division of his retirement pay; and the award for attorney’s fee. He urges at the outset that appellee failed to prove a cаuse of action for divorce. As a cross-point, appellee says that appellant cannot assert this point in that apрellant did not complain of this alleged error in his motion for new trial. We overrule this cross-point. It is now settled that where a motion for new trial is filed after a non-jury trial, appellant is not restricted to those assignments of error urged in his motion for new trial. Boswell v. Handley,
It is fundamental that а divorce should not be granted by the trial court or be permitted to stand by an appellate court unless the evidence is full and satisfaсtory. It, therefore, is the duty of this Court to examine the entire record, to determine whether the evidence is full and satisfactory and of a nаture to justify and support the decree granting the divorce. In doing so, however, we must not lose sight of the fact that the trial court had the vantаge of having the parties before him and the opportunity to observe their demeanor and pass upon their credibility. Shaw v. Shaw,
Appellee alleged that the couple were married in 1948, and in 1964 they separated and ceased to live together as husband and wife on account of the actions and conduct of appellant. She alleged that he was guilty of excesses, cruel treatment and outrages toward her of such a nature as to render their further living together insupportable. There are no findings of fact, but the record supports an implied finding that appellant was guilty of excesses, cruel treatment and outrages against appellee of such nature as tо render their living together insupportable. *788 The decree of divorce was therefore proper. Art. 4629(1), Vernon’s Ann.Civ.St.
Both appellant and appellee were witnesses in this cause. Appellee testified that the parties separated in July, 1964, because of the excessive drinking of appellant. That in addition to his excessive drinking, which resulted “in DWIs” and incarceration in jail, appellant would be gone all night without any explanation at least once a week. That he had a violent temper and humiliated appellee and the children in public. Appellee testified that she finally left appellant in the best interest of their two daughters. Appellant did not deny that he was guilty of such conduct and in fact admitted that to be fair, appellee had some grounds for the action. He emphatically denied that there was any chance they could ever live together again as husband and wife. Several unsuccessful attempts were made to reconcile before ap-pellee brought this action in July, 1968. We conclude from this record that the evidence is full and satisfactory in support оf the implied finding of the trial court.
At the time of the divorce, appellant was a Tech Sergeant (E-6) in the Air Force with over twenty-four years service. He was eligible to retire, although he had not done so and had no intention of doing so at that time. The trial court found that he had a vеsted right in his military retirement pay based on twenty-four years service. Since he had been married twenty of those years, the court found that 2%4ths represented the community interest in such retirement pay. Appellee was awarded 1%4ths interest of the amount which appellant was then entitled to receive had he retired on that date, “if, as, when and during the time” appellant received retirement payments. Appellant urges that such retirement pay was not vested and, in any event, the court was without authority under Federal Law to award a portion of samе to appellee. He says that, in any event, appellee’s interest was not correctly calculated.
This question was recеntly considered by us in Mora v. Mora, Tex.Civ.App.,
It is seen that no part of the payments were assigned or transferred to appellee. Therefore, thеre is no violation of Title 31, U.S.Code, Sec. 492, or any other federal regulation of which we are aware. Appellant urges that he may nеver retire. In that event appellee would not be entitled to receive anything under the decree entered herein. The trial court did not err in considering that the community interest was 2%4ths, in that at the time of the divorce the parties had been married for over twenty years and appellant had served in the air force during that entire period. See 44 Texas Law Review 860, 881; Hughes, Community Property Aspects of Profit-Sharing and Pеnsion Plans.
Appellant urges that there is no evidence to support the finding by the trial court that appellee was entitled to recоver the sum of $475.00 for her attorney’s fee. We have examined the entire record and there is no evidence whatsoever relating to what legal services were performed or the reasonable value of same. Nor is there a stipulation or agreement as to thе value or determination of same. In Great Ameri
*789
can Reserve Ins. Co. v. Britton,
Accordingly, the judgment of the trial court is reformed to delete the recovery of the sum of $475.00 as attorney’s fee. In all other respects the judgment is affirmed. The costs of this appeal are taxed one-third against appellee, and two-thirds against appellant.