Caruso v. Lucius

• Decision Date: 03 December 1969
• Docket Number: No. 11713,11713
• Citation: 448 S.W.2d 711
• Parties: Teresa Francesca Luci CARUSO, Appellant, v. John LUCIUS, Appellee. . Austin
• Court: Texas Court of Appeals

Page 711

448 S.W.2d 711

Teresa Francesca Luci CARUSO, Appellant, v. John LUCIUS, Appellee.

No. 11713.

Court of Civil Appeals of Texas.

Austin.

Dec. 3, 1969.

Rehearing Denied Jan. 7, 1970.

Franz & Franz, Charles L. Franz, Jr., San Antonio, Mitchell, Gilbert & McLean, Phillip W. Gilbert, Austin, for appellant.

John J. Migl, Russell G. Ferguson, Austin, for appellee.

PHILLIPS, Chief Justice.

This is a suit brought by the first wife, the Appellant, against the estate of her deceased husband and his adopted son, Appellee, for a partition of her undivided community interest in properties accumulated during the marriage. This claim is also for her share of the community estate accumulated during her husband's putative marriage to a second wife.

Neither side has attacked the adoption proceedings pertaining to the Appellee nor his claim of heirship to his lawful portion of the estate.

Trial was to a jury which found in favor of Appellant; however, the court entered judgment that she take nothing by her suit. Consequently, she perfected her appeal to this Court.

We reverse and render judgment for Appellant.

I.

Appellant's points of error one and two, briefed together, are the error of the court in granting Defendant's (Appellee's) motion to disregard the jury's findings in response to special issue No. 2, since the jury's findings in response thereto are supported by at least some evidence; in failing and refusing to grant Plaintiff's (Appellant's) motion for judgment on the jury's verdict.

We sustain these points.

Appellant is asserting her claim, as the prior and legitimate wife of Pasquale Caruso, to her portion of the community property, which, under Texas law would be one-half of Pasquale Caruso's one-half of the community property accumulated during his later, putative marriage to Arcelia Lucius Caruso. ¹

The jury's answer to Special Issue No. 1 was that the Appellant and Pasquale Caruso had been legally married on September 18, 1913 and the jury's answers to Special Issues Nos. 4 and 5 were that at the time of Pasquale Caruso's and Arcelia Lucius Caruso's common law marriage of January 8, 1925, Arcelia Caruso did not know of the pre-existing marriage of Appellant and Pasquale Caruso.

Since Arcelia Lucius Caruso was innocent of knowledge of the pre-existing marriage, she was not a meretricious spouse, but was a putative spouse, and entitled to one-half of the 'community' properties acquired by herself and Pasquale Caruso during their marriage relationship. Appellant's claims, therefore, were to one-half of Pasquale Caruso's one-half of the properties in question, plus the net income from those properties since the date of Pasquale Caruso's death on July 19, 1966.

Therefore, Appellant contends that as the widow of Pasquale Caruso, she would be entitled to a partition of her undivided one-fourth interest in the properties in question, plus one-fourth of the net income derived from those properties since the death of Pasquale Caruso on July 19, 1966.

The answers of the jury to the Special Issues would have entitled Appellant to entry of a judgment according to the request made by her in her Motion for Judgment; however, the trial court held that there was no evidence to support the jury's finding in response to Special Issue No. 2, to the effect that her marriage to Pasquale Caruso had not been dissolved by divorce or annulment before the death of Pasquale Caruso. On that basis, the trial court entered judgment that the Appellant take nothing by her suit.

Pasquale Caruso was born on August 27, 1890 in Molochio, Italy. He and Carmelo Cristarella (one of Appellant's witnesses), who was born March 10, 1899 in Molochio, Italy, became friends there. Pasquale Caruso was married to the Appellant in Molochio, Italy, on September 18, 1913. Cristarella knew both of them well and they were all close friends.

In 1914, Pasquale Caruso came to the United States, to live in Amsterdam, New York. That same year, the Appellant and Pasquale Caruso had a child, who died at birth. Pasquale Caruso moved from Amsterdam, New York to San Antonio, Texas around 1917, and in 1921, Carmelo Cristarella moved from Molochio, Italy to San Antonio, Texas, where he renewed his friendship with Pasquale Caruso.

After 1921, Cristarella and Caruso saw each other almost every day . Caruso moved from San Antonio, Texas to Austin, Texas around 1929, with Arcelia Lucius Caruso, whom he introduced as his wife. They remained residents of Austin, Texas until Pasquale Caruso's death on February 6, 1966. Except for a stay of around a month in Fort Worth, Texas and a visit to France for about a month, Caruso never stayed anywhere else for any significant time after his marriage to Appellant.

In 1930, at the age of eight, the Appellee had come to Austin to live with his aunt, Arcelia Lucius Caruso, and with Pasquale Caruso, and he was adopted by them on December 10, 1942.

Pasquale Caruso kept his prior marriage hidden from his second wife, Arcelia Caruso, at least until after they were married and from his adopted son, the Appellee, John Lucius. He acknowledged his existing marriage to Appellant, to his old friend, Carmelo Cristarella, many times. However, he attempted to keep this fact as undisclosed as possible, and in 1960 or 1961, he specifically refused to send the Appellant money, stating, 'I can't afford to send money to my wife, because I be incriminated.'

As has been mentioned, the trial court, at the urging of the Appellee, refused to give effect to the Appellant's evidence showing that Appellant's marriage to Pasquale Caruso had never been terminated, and specifically ignored the jury's finding in response to Special Issue No. 2. This action of the trial court must be reversed because of three independent lines of evidence supporting the jury's finding.

The evidence showed Pasquale Caruso's admissions of the existing nature of his marriage to Appellant, in conversations with Appellant's witness, Carmelo Cristarella. 'Q Did Mr. Caruso ever discuss anything with regard to Teresa Francesca Luci Caruso with you?

A Yes, several times. * * * in 1961 or--60, here in Austin, Texas. My brother come.

Q And you and your brother were here in Austin?

A Visited him in the hospital here, Brackenridge Hospital.

Q Who did you see there?

A We see Caruso. He was sick in bed.

Q Was there any conversation there?

A Yes, sir.

Q What was the conversation?

A The conversation was my brother asked Caruso.

Q Please slow down, sir.

A My brother asked Caruso, his wife asked my brother, to send some money to help her because she was sick in the hospital.

Q What was the response?

A The response he say, 'no.' He refused to send the money.

Q Do you remember the words he used?

A Yes, I did. He say, 'I can't afford to send the money to my wife, because I be incriminated."

Mr. Cristarella further testified as follows:

'Q Mr. Cristarella, did Mr. Caruso ever refer to Teresa Francesca Luci Caruso as his wife?

A Yes, sir.

Q On how many occasions?

A Many, many times.'

Pasquale Caruso's use of the word 'incriminated' is important. It is reasonable to infer that Caruso was referring to the crime of bigamy, which he could certainly never be convicted of if his marriage to the Appellant had been terminated by a divorce or annulment. His statement evidences his appreciation of the fact that his very acknowledgment of the Appellant as 'my wife' was against his interest.

An admission of a decedent, acknowledging a marriage with a third party, is admissible evidence to show the existence of the marriage. Antonopoulos v. Woolsey, 392 S.W.2d 194 (Tex.Civ.App., El Paso, 1965, no writ); Snyder v. Schill, 388 S.W.2d 208 (Tex.Civ.App., Houston, 1965, writ ref. n.r.e.).

Appellee relies on a line of authority such as Texas Employers' Ins. Ass'n v. Elder, 155 Tex. 27, 282 S.W.2d 371 (Tex.1955) where it was held that a presumption arises from the fact of a subsequent marriage that previous marriages have been dissolved. It is said to be one of the strongest presumptions known to law and that the presumption is itself evidence that may even outweigh positive evidence to the contrary. This presumption is based on sound public policy that favors morality, innocence, marriage and legitimacy. However, in upholding this presumption in Elder the Court stated that there was no evidence that the marriage had been dissolved or that it had not been dissolved. Here we have sufficient evidence that the marriage had not been dissolved to have gone to the jury with the resulting finding. Thus the presumption was rebutted.

In addition to the deceased's admission against interest there is further evidence that the marriage had never been dissolved.

This is evidence suggesting that Appellant and Pasquale Caruso had never been divorced and that their marriage had never been annulled and was presented in the form of a series of certificates proving that no such divorce or annulment took place in any of the jurisdictions where Pasquale Caruso or the Appellant resided.

The evidence discloses that Appellant was born, married and has resided all of her life in molochio, Italy. Pasquale Caruso was born and married in Molochio, Italy. He left Italy in 1914, came to the United States and resided in Amsterdam, New York until 1917 when he moved to San Antonio, Texas. From San Antonio he moved to Austin, Texas where he died. Certificates were presented into evidence from Molochio, Italy, New Amsterdam (Montgomery County, N.Y .), Bexar and Travis Counties, Texas, declaring that Caruso had never obtained a divorce or annulment in any of these jurisdictions.

Since Caruso had entered into a ceremonial marriage with Arcelia Lucius Caruso in 1940 in Floresville (Wilson County), Texas and may have possibly lived for about a month in Fort Worth (Tarrant County) Texas, Appellant secured additional certificates negating any divorce or annulments in these places. In addition, Appellee admitted that Pasquale Caruso...