Miller v. Miller

11 Citing cases

  1. Dzierwa v. Cerda

    No. 04-13-00407-CV (Tex. App. Aug. 6, 2014)   Cited 6 times

    "Adultery may be proved by direct or circumstantial evidence, but is not proved by mere suggestion and innuendo." Miller v. Miller, 306 S.W.2d 175, 176 (Tex. Civ. App.—San Antonio 1957, no writ); see also In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.). "[C]lear and positive proof is necessary."

  2. Michael D.C. v. Wanda L.C

    201 W. Va. 381 (W. Va. 1997)   Cited 426 times
    Holding that statutory defenses to granting divorce on ground of adultery include ". . . the last adulterous act occurred [more than] three years before the complaint for divorce was filed"

    Adriaen M. Morse Jr., Fault: A Viable Means of Re-injecting Responsibility in Marital Relations, 30 U. Rich. L.Rev. 605, 609 (1996). E.g., Brooks v. Brooks, 652 So.2d 1113 (Miss. 1995) (clear and convincing); Gamer v. Gamer, 16 Va. App. 335, 429 S.E.2d 618 (1993) (clear and convincing); Crawford v. Crawford, 429 Pa. Super. 540, 633 A.2d 155 (1993) (clear and convincing); Perry v. Perry, 301 S.C. 147, 390 S.E.2d 480 (Ct.App. 1990) (preponderance); Gilliam v. Gilliam, 776 S.W.2d 81 (Tenn.Ct.App. 1988) (preponderance); Clements v. Clements, 255 Ga. 714, 342 S.E.2d 463 (1986) (preponderance); Bell v. Bell, 15 Ark. App. 196, 691 S.W.2d 184 (1985) (preponderance); Ross v. Ross, 103 Idaho 406, 648 P.2d 1119 (1982) (clear and convincing); Miller v. Miller, 306 S.W.2d 175 (Tex.Civ.App.-San Antonio 1957) (clear and convincing). In reviewing the divorce cases decided by this Court within the past twenty years, we have found only a few cases involving divorces that were granted solely on the grounds of adultery.

  3. In re Marriage of Hottinger

    No. 07-20-00211-CV (Tex. App. Sep. 29, 2021)   Cited 1 times

    Colleen's testimony is suggestive of adultery, but it is conclusory and fails to establish the existence of the elements of adultery. See Miller v. Miller, 306 S.W.2d 175, 176 (Tex. Civ. App.-San Antonio 1957, no writ) (husband's testimony that "I know she was and has been unfaithful to me up to the present time" is insufficient to prove adultery); Dzierwa v. Cerda, No. 04-13-00407-CV, 2014 Tex.App. LEXIS 8518, at *8-9 (Tex. App.- San Antonio Aug. 6, 2014) (mem. op.) (wife's testimony that she "kn[e]w that [husband] was seeing another women" [sic] and that she "believe[d] he was having an affair with that woman" constituted mere suggestion or innuendo that husband committed adultery); see also In re T.W.E., 217 S.W.3d 557, 560 (Tex. App.-San Antonio 2006, no pet.) (finding father's "mere agreement" that he saw no problem with his serving as a joint managing conservator is "too conclusory to amount to any evidence"); Vazquez, 292 S.W.3d at 85 (petitioner signing divorce decree and testifying that she "thought the conservatorship was in the best interest of the children" is conclusory and does no

  4. Rust v. Rust

    No. 04-17-00674-CV (Tex. App. Oct. 3, 2018)   Cited 3 times

    Rather, a soldier's domicile remains the same as when he or she entered the service, unless proof of clear and unequivocal intention to change domicile is shown." See Torrington Co. v. Stutzman, 46 S.W.3d 829, 849 n. 17 (Tex. 2000) (internal citations omitted); see also Miller v. Miller, 306 S.W.2d 175, 176 (Tex. App.—San Antonio 1957, no writ) (holding a military service member who at the time he entered the armed forces lived in Victoria County, Texas and did not acquire another permanent residence retained his residence and domicile as it existed at the time he entered the service). The record before us does not show an "unequivocal intention to change domicile."

  5. In re Green

    385 S.W.3d 665 (Tex. App. 2012)   Cited 24 times
    Concluding that mandamus relief was appropriate to review an order denying a motion to dismiss divorce proceedings based on the failure to establish the residency requirement

    Wilson v. Wilson, 189 S.W.2d 212, 213 (Tex.Civ.App.-Fort Worth 1945, no writ). With regards to a soldier in the military, the “soldier does not acquire a new domicile merely by being stationed at a particular place in the line of duty. Rather, a soldier's domicile remains the same as when he or she entered the service, unless proof of clear and unequivocal intention to change domicile is shown.” See Torrington Co. v. Stutzman, 46 S.W.3d 829, 849 n. 17 (Tex.2000) (internal citations omitted); see also Miller v. Miller, 306 S.W.2d 175, 176 (Tex.App.-San Antonio 1957, no writ) (holding a military service member who at the time he entered the armed forces lived in Victoria County, Texas and did not acquire another permanent residence retained his residence and domicile as it existed at the time he entered the service). In order to maintain the divorce proceeding in Texas, the trial court had to determine that Donovan became a domiciliary of Texas. Maria claims Donovan became a domiciliary of Texas because he lived in San Antonio from June 1992 until September 1992 and from December 1995 until May 1996 for military training, and she asserts he took affirmative steps to change his legal residence to Texas by designating Texas as his residence on his military leave and earnings statement.

  6. In re Green

    No. 04-12-00355-CV (Tex. App. Sep. 12, 2012)

    Rather, a soldier's domicile remains the same as when he or she entered the service, unless proof of clear and unequivocal intention to change domicile is shown." See Torrington Co. v. Stutzman, 46 S.W.3d 829, 849 n.17 (Tex. 2000) (internal citations omitted); see also Miller v. Miller, 306 S.W.2d 175, 176 (Tex. App.—San Antonio 1957, no writ) (holding a military service member who at the time he entered the armed forces lived in Victoria County, Texas and did not acquire another permanent residence retained his residence and domicile as it existed at the time he entered the service). In order to maintain the divorce proceeding in Texas, the trial court had to determine that Donovan became a domiciliary of Texas.

  7. Ayala v. Ayala

    387 S.W.3d 721 (Tex. App. 2011)   Cited 58 times
    Considering father's history of failure to pay child support in custody determination

    Bell v. Bell, 540 S.W.2d 432, 435 (Tex.Civ.App.-Houston [1st Dist.] 1976, no writ). Adultery may be proved either by direct or circumstantial evidence. Miller v. Miller, 306 S.W.2d 175, 176 (Tex.Civ.App.-San Antonio 1957, no writ). Mere suggestion and innuendo, however, are insufficient; clear and positive proof is necessary. In re S.A.A., 279 S.W.3d 853, 856 (Tex.App.-Dallas 2009, no pet.).

  8. Ayala v. Ayala

    No. 01-09-00785-CV (Tex. App. Jul. 21, 2011)   Cited 1 times
    Holding trial court had sufficient information to divide marital estate despite lack of evidence concerning market value of family home

    Bell v. Bell, 540 S.W.2d 432, 435 (Tex. Civ. App.-Houston [1st Dist.] 1976, no writ). Adultery may be proved either by direct or circumstantial evidence. Miller v. Miller, 306 S.W.2d 175, 176 (Tex. Civ. App.-San Antonio 1957, no writ). Mere suggestion and innuendo, however, are insufficient; clear and positive proof is necessary. In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.-Dallas 2009, no pet.).

  9. In re S.A.A

    279 S.W.3d 853 (Tex. App. 2009)   Cited 49 times
    Holding trial court's jurisdiction to render judgment is invoked by pleadings, and a judgment unsupported by pleadings is void

    See Bell v. Bell, 540 S.W.2d 432, 435 (Tex.Civ.App.-Houston [1st Dist.] 1976, no writ). Although adultery may be proved by direct and circumstantial evidence, clear and positive proof is necessary and mere suggestion and innuendo are insufficient. See Miller v. Miller, 306 S.W.2d 175, 176 (Tex.Civ.App.-San Antonio 1957, no writ). The record is devoid of substantive and probative evidence supporting the trial court's finding of adultery by Adame.

  10. Morrison v. Morrison

    713 S.W.2d 377 (Tex. App. 1986)   Cited 53 times
    Finding no jurisdictional barrier to a trial court’s belated findings of fact

    We disagree. At trial, David admitted taking other women to motels for "sexual encounters" but denied commiting adultery because he claimed he was incapable of sexual intercourse. Adultery, however, can be shown by circumstantial evidence. Miller v. Miller, 306 S.W.2d 175, 176 (Tex.Civ.App. — San Antonio 1957, no writ). Furthermore, in evaluating David's testimony, the trial court could disregard David's uncorroborated claim of impotency. Gunter, 663 S.W.2d at 675.