Ashby v. Stevenson ( 1963 )

COLEMAN, Justice.

I respectfully dissent. The evidence recited in the majority opinion demonstrates a change of condition requiring the trial court to weigh the evidence as of the date of the trial to determine whether or not an injunction was proper under the circumstances. It seems to be conceded that the only purpose of the injunction was to encourage reconciliation. After the injunction had been in force for several months, appellee filed a cross-action for divorce alleging that his wife had pursued toward him since the 4th day of November, 1961, a course of unkind, cruel and immoral conduct such as rendered their further living together as husband and wife completely insupportable. The injunction has been in force for more than a year. Both appellee and his wife appeared before the Court of Domestic Relations asking for a divorce. Appellee testified that because of his wife’s conduct he could no longer live with her as her husband. The evidence negatived the existence of any progress toward reconciliation during the previous year. The purpose of the injunction was to prevent interference with the marital relationship. It could be presumed as a matter of law that irreparable injury would result from such interference. However, appellee’s testimony, together with the fact that he asked for and was granted a divorce, even though it was not final at the time of this hearing, conclusively rebuts this presumption. No other evidence supports an implied finding of probable injury to appellee if the injunction is not continued in force. The trial court’s action in continuing the injunction constituted an abuse of discretion. Camp v. Shannon, Tex.Sup., 348 S.W.2d 517.