#### RITCH v. RITCH.

No. 14426.

Court of Civil Appeals of Texas. Dallas.

June 22, 1951.

Rehearing Denied Sept. 21, 1951.

Earl R. Parker, Dallas, for appellant.

Moses & Truett, McKinney, for appel-lee.

*211BOND, 'Chief Justice.

This is an appeal from a judgment granting to the plaintiff (appellee) a divorce. The cause was tried to the court without aid-of a jury.’ The' allegations in plaintiff’s petition upon which the decree was entered, are that the plaintiff and the defendant were married Novembér 13, 1947 and “continued to live together as husband and wife until on or about the 12th day of December A.D. 1947; that during the time he and defendant lived together as afore-sáid * * * defendant, unmindful ■ of the duties and obligations of her vows, *shortly prior' Vo the time of their separation*commenced a course of unkind, harsh, cruel and tyrannical conduct towards plaintiff, and that on divers occasions *while plaintiff lived with defendant as aforesaid,*she was guilty of cruel treatment and outrages toward him of such a nature as to render their further' living together insupportable. Plaintiff would further show that defendant voluntarily left his bed and board for a period of three years with intention of abandonment.” (Italics supplied.)

The material evidence is uncontroverted. On November 13, 1947 the plaintiff was a United States soldier, on leave, and on that date he and the defendant were legally married and'■ cohabited together in Texas as man and wife-uritil December 12, 1947 when the plaintiff was ordered to army camp at Kilmer, New Jersey, where he remained in camp until January 4, 1948 when he was sent overseas ’ to Frankfort, Germany. Prior to their marriage the defendant was employed with Waples-Platter Company'in Fort Worth, and continued her employment during the time the plaintiff was in Texas and before he left for Camjj Kilmer, and continued her employment while her husband was overseas in" the U; S. Army. The plaintiff remained with the army in Germany until Novembér 1949, when lie was sent to U. S. Veteran’s Hospital, Denver, Colorado, listed as: ¿ critical tubercular patient. Subsequently, -in 1950 he was assigned to" Veterarfs Hospital at McKinney, Texas; where he was a patient under treatment for tuberculosis at time of this' trial. The defendant had ■ no ' knowledge of'his transfer to McKinney tintil service of c'ita7 tion in this suit was served upon her.

At the time of plaintiff’s marriage; November 13, 1947, and subsequent thereto, •he assigned his 'soldier’s, salary allotment of $80 per month to his wife for her maintenance and support until he was discharged from the army in June 1950. ;His discharge from the army was due to physical disability, since which tim.e.he has not paid the defendant anything out of his retired veteran’s pension allowance. .Wliile in the U. S. Armed Forces at Camp Kilmer, and overseas, and in the hospital af Denver, he and his wife carried bri correspondence with each other, plaintiff testifying that he wanted his wife to come to be with .him, which she refused to' do.- The defendant testified (corroborated by 'Other witnesses and circumstances) that -shé wanted to follow the plaintiff to the camp in New'Jersey and to go overseas' with him; that she contacted .a: Cqptain Tobin, superior U. S. Army officer at.Denver, making inquiry of him as to plaintiff’s .condition and advisability of her-visiting him; that during his stay at camp and in the -'hospital, in routine conversations with acquaintances, she often expressed grave concern. over 'her husband’s .welfare, "frequently expressing to ’them ..her. 'wishes concerning- his recovery and.-a resumption .of their marital relations ; ¡and that she planned to go and make •her. home with him, and 'b'e with him whenever she was able to do so.. That she had .often written to him to the effect that she would quit her .employment, move where he was stationed;, a-nd . further (uncontro-verted), that when her. husband was sent to the Denver hospital she did go there and-' was with him through the Christmas holidays of 1949, stayed in Denver until some time in January, 1950, making frequent visits to the hospital to see him and be with him; and that, while in Denver, at her husband’s request, she instituted a suit against him for divorce, alleging in her petition cruel treatment — ‘‘infidelity and cruelty and consorting with other women,” which charges the plaintiff -testified-were untrue, and because of which' he has been greatly upset,- -affecting his -nervous system *212and physical condition. ' The defendant testified, at the instance of plaintiff’s attorney :

> “Q; You and he will never live together again, will you? A. If he is able, I am willing. * * *

> “Q. You have refused to go live with him in the- past, haven’t you? A. I have not.

> “Q. You never did? A. I have never refused to go to him when he wanted me.

> “Q. Didn’t you refuse to go to Camp Kilmer ? A. I did not.

> “Q. Didn’t you refuse to go. overseas? A. I surely did not.

> “Q. And in the past four years, approximately, you have lived with him two or three weeks ? A. That is correct.

> “Q. I would like for you to tell the court what is your reason for not wanting him to have a divorce? A. To begin with, he has ho grounds for divorce. T have never one time mistreated him. And another thing, to me there is only one ground for divorce, and it certainly is not the ground he has filed on. And another thing, I still love W. H. Ritch. I told him that when-1 went to Denver. I wanted to move to Denver at the time,.and he didn’t see fit for it. I was offered a job, and I wrote him and told him it would mean less on the money for me but if he wanted me to, I would move up there. He wrote back and told me ■to go ahead and make my plans—

> “Q: * * * Do you still want to remain his wife when you have filed the suit against him for divorce, accusing him of cruelty, adultery and consorting with other women? — A; I certainly do.

> “Q. — and abusiveness'and excesses? A. ■I do. - ' '

> “Q. Then you have changed your mind since you filed that suit, haven’t you? A. I didn’t file that suit for my benefit. He requested that I file it. And I filed it to keep him from getting a divorce as long as I could drag it.”

Further, the evidence is uncontro-verted that the plaintiff had, up to the time of trial, been confined in hospitals for almost two years with tuberculosis; and, according to his testimony, the cruel treatment which he claims makes their further living together “insuppprtable,” occurred, if at all, in January 1950, when she filed the divorce ■ suit in Denver, Colorado. There is no evidence, and the plaintiff does not contend in this appeal, or in the court below, that the defendant was guilty of cruel treatment *prior to their separation on December 12, 1947,*and no -pleading that the defendant was guilty of cruel treatment at any time subsequent to said, date. On the contrary, plaintiff’s testimony is that he wanted his wife to go with him to camp and overseas and, later, to Denver, to be with him; which is manifestly inimical to any insupportable obstacle of cruel treatment, or voluntary abandonment for three years, as to make their- further living together insupportable. Ill-treatment, in divorce' suits, rendering living together insupportable, should be strictly construed to mean such excesses, cruel treatment, or outrageous conduct of the spouses that living together would be “unendurable, intolerable and insufferable.” Blake v. Blake, Tex.Civ.App., *263*S.W. 1075; Rodriguez v. Roderiguez, Tex.Civ.App., 186 S.W.2d 88; Cantwell v. Cantwell, Tex.Civ.App., 217 S.W.2d 450.

Then, too, there is no evidence that the defendant “voluntarily left plaintiff’s bed and board for a period of three years with intention of abandonment.” True, enough, they had lived apart the greater portion of their married life, but their failure to live together was not the result of causes brought about by her. “Voluntary” is sometimes synonymous with .“wilfully” dqne. by design or intention. The “intention, of abandonment” is not present where the cause of separation was beyond the defendant’s control. To sustain a divorce, the abandonment must be “voluntary,” without sufficient reason .and with the intention not to return. Thus, in absence of pleadings and evidence of cruel treatment, or that the defendant “voluntarily’.’ left plaintiff’s bed and board with the “intention of abandonment,” we are confronted with nothing on which to base a divorce. Not infrequently the facts relied upon to secure a divorce fail to come *213within, or constitute any recognized ground for divorce. In such a case, as here, the Court has no alternative hut to refuse a decree of divorce.

“ * * * the state or society in general has an interest in marriage contracts and divorce cases, and for that reason the courts will scrutinize the pleadings and the evidence upon which a divorce is predicated, and to such apply a different rule to that of other civil cases.” Caywood v. Caywood, Tex.Civ.App., 290 S.W. 889, 890. Accurate pleading and clear and •convincing proof as to manner, time and place pertinent to the cause should appear to sustain the suit. The 'burden of establishing the cause of action by a preponderance of the evidence is’ upon the plaintiff; and this rule is intended as a protection against the dissolution of the marriage relation for trivial causes. The mere fact that one spouse “does not want” the other, or that the parties may not longer live together, and they confirm the attitude by acts and conduct, is no ground for divorce. Gaderson v. Gaderson, Tex.Civ.App., 257 S.W. 569.

“While it is a familiar principle that the Court of Civil Appeals has no authority to substitute its own findings for findings by the jury or the trial, court ;on disputed issues of fact, a different rule applies in divorce actions. In a suit oí .this character the evidence is required to be Tull and satisfactory’ to the Appellate Court as .well as to the trial court.” 15 Tex.Jur., p. 554, sec. 88. The discretion of the trial court in interpretation of the pleadings and evidence is always subject to review by the Appellate Court, and may or should be reviewed not only as to the law but also as to the facts. If such were not true, the statute allowing appeals in divorce suits would 'be “as sounding brass, or a tinkling cymbal.” Indeed, it is not amiss to say that in passing on the sufficiency of the evidence, the Appellate Court Should accord much deference to the conclusions of the trial court in respect to the credibility of witnesses and the weight of the evidence. But where, as in the case here, the plaintiff having pleaded the cause based upon cruel treatment occurring *“prior to tpieir separation”*on December 12,. 1947, in absence of any testimony whatsoever sustaining such pleadings,'. any , subsequent acts pf cruel treatment, as ,to make their further living together “insupportable,’.’ are-disproved by plaintiff in, his wanting his wife to. be with him; and the plaintiff having voluntarily supported his wife all the time he was¡ in the army, and he 'being so situated that his wife was unable to be with him, bed and board, presents no ground of “voluntary abandonment” for divorce.

Therefore the judgment of the trial court should he- reversed and the divorce denied; it is so ordered.

Reversed and rendered.