In the Matter of the Marriage of Melissa June Wellington and Craig Matthew Wellington--Appeal from County Court at Law No 2 of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00181-CV

In the Matter of the Marriage of

Melissa June Wellington

and Craig Matthew Wellington,

From the County Court at Law No. 2

Brazos County, Texas

Trial Court No. 06-000548-CVD-CCL2

MEMORANDUM Opinion

Melissa and Craig Wellington were married in August of 2003 and separated in February of 2006. No child was born during the marriage and none were adopted. Melissa filed a suit for divorce on March 3, 2006. The parties entered into a Settlement Agreement concerning the property issues. The agreement specifically reserved to Craig the right to contest the granting of a divorce, required Melissa to participate in counseling sessions with a counselor of Craig s choosing, and provided for the future care of two cats owned by the couple.

After attempts to reconcile failed, the trial court held a hearing on November 13, 2006, at which both parties testified. Melissa testified that the marriage was insupportable because of discord or conflict of personalities between the spouses that destroyed the legitimate ends of the marriage and that there was no reasonable expectation of reconciliation. She acknowledged that Craig opposed the divorce. Craig testified that he had signed the Settlement Agreement and thought it was fair and equitable. He said that in his opinion there were no irreconcilable differences that could not be addressed through counseling.

The attorneys for the parties did not agree on the form of the decree, and Melissa asked the trial court to proceed to judgment. Both parties appeared at the second hearing with counsel, and after the trial court heard arguments, a decree of divorce based on the November hearing and the settlement agreement was signed. Craig filed a motion for a new trial, which was overruled by operation of law. Craig also filed a notice of appeal. Findings of fact and conclusions of law were not requested.

Two issues are presented: (1) whether the proof of the statutory elements for a no-fault divorce are so lacking in legally sufficient evidence or, alternatively, factually sufficient evidence as to render the trial court s decision an abuse of discretion; and (2) whether the trial judge failed to reconcile the competing objectives of supporting the institution of marriage and allowing persons to divorce without assigning fault. Because we find that the issues have no merit, we will affirm the judgment.

Whether evidence is sufficient to support a decree of divorce on grounds of insupportability is a matter within the trial court s discretion. In re Marriage of Scott, 117 S.W.3d 580, 582 (Tex. App. Amarillo 2003, no pet.). When the standard of review on appeal is whether the trial court abused its discretion, legal and factual sufficiency questions are factors to consider in applying the standard, rather than independent grounds for review. Yarbrough v. Yarbrough, 151 S.W.3d 687, 690 (Tex. App. Waco 2004, no pet.); Walston v. Walston, 971 S.W.2d 687, 691 (Tex. App. Waco 1998, pet. denied).

The insupportability ground of divorce is set out in section 6.001 of the Family Code. This ground, also known as no-fault divorce, has three elements. Cusack v. Cusack, 491 S.W.2d 714, 716 (Tex. Civ. App. Corpus Christi 1973, writ dism'd w.o.j.) (discussing previous codification as section 3.001 of the former Family Code). They are: 1) that the marriage has become insupportable because of discord or conflict, 2) that discord or conflict destroys the legitimate ends of the marriage, and 3) there is no reasonable expectation of reconciliation. Tex. Fam. Code Ann. 6.001 (Vernon 2006). The party petitioning for a divorce on these grounds has a duty to establish the statutory elements with adequate evidence. In re Marriage of Richards, 991 S.W.2d 32, 37 (Tex. App. Amarillo 1999, pet. dism d).

In 2003, the Dallas Court of Appeals, reviewing the denial of a temporary injunction, held that a wife s testimony that her marriage was irreparable due to discord and a conflict of personalities between her and her husband, together with her testimony that there was no chance for reconciliation, established a prima facie case for a no-fault divorce under section 6.001. In re Marriage of Beach, 97 S.W.3d 706, 708 (Tex. App. Dallas 2003, no pet.). The Court also rejected the husband s assertion that a wife has a duty to reconcile. Id. ( assertion that a spouse has a legal duty to reconcile is utterly without merit ).

Craig asserts that Melissa s one-word responses ( yes or no ) to her attorney s questions do not create a record that reveals sufficient facts upon which the trial court could have rationally exercised its discretion. See Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 938 (Tex. App. Austin 1987, no writ) (extensive discussion of abuse of discretion standard). He phrases the issue as: are Melissa s responses adequate evidence in the face of Craig s controverting testimony?

Very few recent cases discuss section 6.001 of the Family Code. The trial court heard Melissa s testimony affirming the three elements of the grounds for divorce known as insupportability, without any objection as to the form of the questions, heard Craig s testimony concerning his belief that reconciliation was possible, and heard evidence concerning attempts to reconcile through counseling. As the trier of fact, the court was in a position to observe the demeanor of each of the parties and assess the weight that should be given their respective testimonies. Based on the evidence, we cannot say that the trial court abused its discretion in granting Melissa s request for a divorce. See Cusack, 491 S.W.2d at 717. The Corpus Christi Court observed about the predecessor statute:

We conclude that it was the intent of the Legislature to make a decree of divorce mandatory when a party to the marriage alleges insupportability and the conditions of the statute are met, regardless of who is at fault, on the theory that society will be better served by terminating marriages which have ceased to exist in fact. The courts have no right or prerogative to add to or take from such a legislative enactment, or to construe it in such a way as to make it meaningless. As we view the Code, when insupportability is relied on as a ground for divorce by the complaining spouse, if that ground is established by the evidence, a divorce must be granted the complaining party, without regard as to whether either, both or neither of the parties are responsible for or caused the insupportability. [Citation omitted.] It is not incumbent upon the plaintiff who brings the divorce action upon the ground of insupportability to show any misconduct on the part of the defendant, but it is only incumbent upon that spouse to establish by the evidence that a state of insupportability exists regardless of whether it is anyone's or no one's fault.

Id.; see also Renfro v. Renfro, 497 S.W.2d 807, 808 (Tex. Civ. App. Waco 1973, no writ) (citing Cusack). We overrule Craig s first issue.

Craig s second issue is essentially a re-urging of his first: The two state interests (supporting marriage and promoting no fault divorce) can best be reconciled by requiring legally and factually sufficient evidence to support rendition of a no fault divorce when one spouse opposes the divorce and presents controverting testimony on the statutory elements. As the Corpus Christi Court noted in Cusack, the decision to protect society s interests by allowing one spouse to seek and be granted a divorce without a showing of fault was made by the Legislature when it enacted the statute establishing insupportability as a grounds. See Cusack, 491 S.W.2d at 717. We therefore confirm that when the statutory grounds asserted were proven by satisfactory evidence, the trial court had no discretion to deny the divorce. See id. ( if that ground is established by the evidence, a divorce must be granted ). We overrule Craig s second issue.[1]

Having overruled both issues, we affirm the judgment

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 27, 2008

[CV06]

[1] Craig cites Waite v. Waite, 64 S.W.3d 217 (Tex. App. Houston [14th Dist.] 2001, pet. denied) (interlocutory appeal), where the Fourteenth court engaged in extended analysis of the statute which sheds light on the policy concerns presented by Craig. In a plurality opinion, the court rejected the husband s constitutional challenge. See also Waite v. Waite, 150 S.W.3d 797 (Tex. App. Houston [14th Dist.] 2004, pet. denied).