Brown v. Brown , 1945 Tex. App. LEXIS 595 ( 1945 )

This appeal is from the court's judgment of divorce in favor of appellee (plaintiff below), on ground of adultery; defendant's contest raising the issue of condonation. His petition, filed August 21, 1944, set forth a marriage in Fannin County on May 19, 1942, and the birth of a child, Effie Brown, aged about fifteen months. He had entered military service in December, 1942, coming home on furlough in April, 1943, returning to camp April 24 of that year; alleging that he came back on leave fourteen months later, or June 26, 1944, and found defendant pregnant by another man, such conduct on her part rendering their further living together insupportable. Defendant, as stated, interposed the statutory defense of cohabitation, plaintiff allegedly having knowledge of the prior offense.

Errors presented are (1) that said judgment is against the great weight and preponderance of testimony, in that undisputed evidence established that the misconduct, if any, of defendant had been condoned, and (2) the court failed to make provision for support of the minor child, Effie Brown, as required by Art. 4639a, Vernon's Ann.Civ.St. These points necessitate a brief review of material facts.

Plaintiff, a soldier, somewhere in the United States or overseas at time of trial, did not testify in person or by deposition. Lizzie Brown, mother and witness in his behalf, was corroborated in the main by Albert Brown, a brother. She testified that plaintiff came in from Maryland on ten days' furlough, June 26, 1944, starting back to camp July 5; that he spent the first four nights with defendant at home of witness (mother), following which he did not live with defendant; that after the fourth night she heard Joe tell Hazel "she was pregnant and it wasn't none of his" * * * "he said he didn't want her and wasn't going to live with her any more * * *"; that he did not stay with her that night, but got in car and left. Previous to that time witness had heard no disturbance or cross words between the two; defendant wearing loose clothing and her condition "very prominent". Lizzie further related circumstances of defendant sending word that she wanted to see Joe; of his going over there later at night, and upon return showed witness a razor he had taken from under defendant's pillow. On the point at issue, Albert Brown stated:

"Q. Did you hear any conversation between him and his wife about living together? A. Yes, sir, I heard him tell her that he didn't want her.

"Q. What else did he tell her about being pregnant? A. He said he didn't want her after he found out she was that way.

"Q. After he found out he didn't want her any more? A. Yes, sir. * * *

"Q. After he told her that over at your house he didn't go back with her any more ? A. No, sir, not to my remembrance, no, sir.

"Q. And several days after that then, about the 5th of July, he left back for the camp in Maryland? A. Yes, sir.

"Q. From the time he told her that until the time he left he didn't go back? A. Yes, sir."

Appellant Hazel Brown testified that the second child was born October 1, 1944, she having written appellee about her condition before his visit of June 26, sending him money to come home on; that she had cohabited with defendant during the several nights of his furlough, either at her home or his father's; that no differences arose over her pregnancy, they going on and living together as husband and wife; that Joe had even promised to carry her back East, but "after he got all my money I borrowed, he said I couldn't go." As to the razor incident, defendant said: "I thought maybe he was going to bother me and I wasn't going to let him bother me — fighting me. Court: Why did you think he might fight you? A. People told me so many tales on him I thought he was going to try to whip me when he come home but he didn't, and I just carried it for my protection." A letter received from plaintiff in an envelope postmarked August 4, 1944, stated that he might be going overseas, suggesting a ten-day furlough if sent expenses. Defendant was drawing an $80 monthly allotment and an additional $35 per month for the first child, Effie Brown. J. D. Brown, plaintiff's father, stated that he had financed both of plaintiffs trips back home, the latter attempting to secure an attorney for purpose of divorce before leaving, and that, by request, witness completed such arrangement.

Article 4630, Vernon's Ann.Civ.St., provides: "In any suit for divorce for the cause of adultery, if it shall be proved that the complainant * * * has admitted the defendant into conjugal society or embraces after he or she knew the criminal fact, * * * it shall be a good defense and a perpetual bar against said suit." An essential element of the above statutory defense (condonation) is full knowledge of the charged misconduct; or at least "such knowledge as would satisfy a reasonably prudent person that the offense had been committed, giving full weight to the trust and confidence which husband and wife are entitled to place in each other." See Editor's note, 109 A.L.R 683, citing many American decisions.

Obviously, under the present record, defendant's infidelity cannot be denied; her sole defense being plaintiff's cohabitation, with full knowledge of the prior dereliction, establishing condonation in law. It is our view, however, that aforesaid issue was one of fact for the trial court, who has rejected the defense on conflicting testimony. Even in matters of divorce, much deference must be given the conclusions of the trial judge as respects credibility of witnesses, perforce of his first-hand observation of their deportment and demeanor on the stand. 15 Tex.Jur. § 89, p. 557. Art. 4633, Vernon's Ann.Civ.St., reads in part: "where the husband or wife testifies, the court or jury trying the case shall determine the credibility of such witness and the weight to be given such testimony." The effect of this proviso is that in divorce proceedings the weight of all testimony is a matter for determination by the trial court alone. 15 Tex.Jur., supra. In consequence, he was authorized to disregard the defensive version of facts and accept that on behalf of plaintiff, whereby full knowledge of the prior misconduct would not be inferred until after the stated fourth day of his aforesaid furlough.

As regards sufficiency of evidence to support the decree, it is undoubtedly true that the full and satisfactory requirement of Art. 4632 extends to the appellate court as well. Our authority of revision, however, is not without limitation; in which connection the rule is stated in Mortensen v. Mortensen, Tex. Civ. App. 186 S.W.2d 297, 304: "that this court may examine the statement of facts to determine whether or not the evidence is full and satisfactory. In so doing, we are not necessarily bound by the trial court's findings although they are entitled to great deference by this court. When, however, in making this examination, we are confronted by testimony of one witness which is directly contradicted by that of another witness, we must accept the trial court's decision upon the point, as we possess no authority to pass upon the credibility of witnesses and the weight to be given their testimony. As to these matters, the untrammelled decision of a conscientious trial judge is more to be desired than his estimate or guess as to how the cold written record of a trial may impress an appellate court." See also Moon v. Moon, Tex. Civ. App. 186 S.W.2d 362, 363, holding: "However, where there is conflict in the testimony, and the credibility of the witnesses and the weight to be given their testimony is primarily involved, in the absence of the showing of an abuse of discretion by the trial court, its findings of fact will not be disturbed on appeal. Article 4633, R.C.S., 1925; Kreiter v. Kreiter, Tex. Civ. App.137 S.W.2d 184; Bell v. Bell, Tex. Civ. App. 135 S.W.2d 546; Blackburn v. Blackburn, Tex. Civ. App. 163 S.W.2d 251."

Allegations of the trial pleadings were sufficient as to residence of the minor child, Effie Brown, awarded by consent to defendant, Clare v. Clare, 138 S.W.2d 220; such statutory requirement in matter of child support, under Art. 4639a, being satisfied by government allotment admittedly drawn by the mother monthly for such purpose. And the court, though failing to otherwise dispose of the last mentioned issue, is not precluded from hereafter making further provision for the child upon showing of changed conditions, such as plaintiff's resumption of civilian status. Townsend v. Townsend, Tex. Civ. App. 115 S.W.2d 769.

The judgment appealed from must be affirmed.