Marilyn Oneill Mann v. Horace M. Mann

This is an appeal from a judgment in a divorce case. Our appellate jurisdiction is invoked by the dissenting opinion in the Court of Civil Appeals. Tex.Rev.Civ.Stat. art. 1728(1) (1962); see Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962). Subdivision 1 of Article 1728 extends our appellate jurisdiction to questions of law arising in a divorce case where the judges of the Court of Civil Appeals may disagree upon a question of law material to the decision. Here, the majority in the Court of Civil Appeals ruled that the trial court did not abuse its discretion in making a division of the property of the divorcing parties. 592 S.W.2d 4. The dissenting judge stated he found no justification for the trial courts division. A determination of whether the property division decreed in a divorce constitutes an abuse of discretion presents a legal rather than a factual question for appellate review. McKnight v. McKnight, 543 S.W.2d 863 (Tex.1976). Thus, the judges of the Court of Civil Appeals disagreed on a "question of law material to the decision" and this Court has jurisdiction.