Frederick Paul Koeckritz v. Laurie Rae Koeckritz--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-98-217-CV

FREDERICK PAUL KOECKRITZ,

Appellant

v.

LAURIE RAE KOECKRITZ,

Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 98-147-B

O P I N I O N

Appellant Frederick Koeckritz appeals from an order of the trial court dismissing his divorce suit.

Appellant, an inmate of the Teague Unit of the Texas Department of Criminal Justice, on April 24, 1998, filed, pro se in forma pauperis, a petition for divorce against his wife who resides in Jim Wells County. Appellant alleged he had lived in Texas the preceding six months and had been " a resident of Freestone County for the preceding 90 days."

On April 28, 1998, the trial court entered the following order:

It having been brought to the attention of the court that the above cause has been filed by a person incarcerated in the county in which this case is pending, it is ordered that the following questions be answered by the petitioner under oath:

(1) State the date you were first incarcerated in this county:

Answer: September 3, 1997.

(2) Prior to incarceration in this county, give your home address and the periods you resided there:

Answer: Corpus Christi, Texas, September 1993.

(3) State the address of any residence you've ever had in this county prior to your incarceration here and the dates you resided there:

Answer: None.

(4) After your release where do you intend to reside:

Answer: Corpus Christi, Texas.

Thereafter, on May 29, 1998, the trial court entered an order as follows:

The petition in the above cause having been brought to the attention of the court and it appearing to the court from said petition and sworn answers attached hereto, that petitioner is involuntarily in the above county as a result of incarceration within a unit of the Texas Department of Criminal Justice, the court finds petitioner is not a resident of the county; therefore it is ordered that this cause be and same is dismissed.

Appellant appeals contending that he was a resident of Freestone County for 90 days preceding the filing of his petition, and that the court's action in dismissing his case denies him due process and equal protection as guaranteed by the Fourteenth Amendment and Fifth Amendment of the United States Constitution.

Section 6.301 of the Texas Family Code provides:

General Residency Rule for Divorce Suit. A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or respondent has been:

(1) a domiciliary of this state for the preceding six months period; and

(2) a resident of the county in which suit is filed for the preceding 90 day period.

This court has considered the requirements of the above sections of the Family Code on two occasions. In Beavers v. Beavers, 543 S.W.2d 720, 721 (Tex. App. Waco 1976, no writ) this court held:

In its pertinent part, Family Code 3.21 [now 6.301] provides: No suit for divorce may be maintained unless at the time suit is filed the petitioner or the respondent has been . . . a resident of the county in which suit is filed for the preceding 90 day period. A mere constructive residence will not satisfy this statute. It requires and actual, physical, continuous living in the county of suit by one of the parties for the period specified, coupled with a good faith intent to make that county home. Wilson v. Wilson, 494 S.W.2d 609, 611 (Tex. App. Houston [14th Dist.] 1973, writ denied); Struble v. Struble, 177 S.W.2d 279, 285 (Tex. App. Amarillo 1943, no writ). Of course the continuity of residence is not broken by temporary absence from the county.

Such holding was re-stated by this court in Cook v. Mayfield, 886 S.W.2d 840, 841 (Tex. App. Waco 1994, no writ).

Appellant stated in his sworn statement that he had resided in Corpus Christi prior to his incarceration in Freestone County in 1997; and that after his release he intends to reside in Corpus Christi. He has no intention to make his residence in Freestone County after his release from prison, where he is temporarily living while absent from his home in Corpus Christi. His intentions are to reside again in Corpus Christi after his release.

The trial court did not err in dismissing Appellant's divorce petition. Appellant's contentions are overruled.

The judgment of the trial court is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed January 20, 1999

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