Chandler v. Chandler

• Decision Date: 02 December 1992
• Docket Number: No. 08-91-00323-CV,08-91-00323-CV
• Citation: 842 S.W.2d 829
• Parties: Richard L. CHANDLER, Appellant, v. Rachel CHANDLER, Appellee.
• Court: Texas Court of Appeals

Page 829

842 S.W.2d 829

Richard L. CHANDLER, Appellant, v. Rachel CHANDLER, Appellee.

No. 08-91-00323-CV.

Court of Appeals of Texas,

El Paso.

Dec. 2, 1992.

Rehearing Overruled Dec. 30, 1992.

Michael W. Hartley, Waxahachie, for appellant.

William R. Copeland, El Paso, for appellee.

Before OSBORN, C.J., and BARAJAS and LARSEN, JJ.

OPINION

BARAJAS, Justice.

This is an appeal from a Bill of Review. After trial, the jury rendered a verdict in favor of Rachel Chandler, Appellee, upholding the previous, original judgment of divorce. Richard Chandler, Appellant, in five points or error, complains; (1) of the admission of alleged hearsay testimony, (2) of the jury's finding, contending there is legally and factually insufficient evidence to support the verdict, and (3) of an instruction in the court's charge. Appellee, in two cross-points, urges the trial court's judgment be affirmed as a matter of law and complains of the jury's finding denying her attorney's fees. We affirm.

I. SUMMARY OF THE EVIDENCE

Richard and Rachel Chandler were married in Juarez, Mexico on October 17, 1949. On March 17, 1977, Rachel Chandler filed for divorce, and on May 28, 1980, divorce was granted on an agreed divorce decree.

Prior to her marriage to Richard Chandler, Rachel Chandler had been married to Pablo Torres Tovar. Rachel Chandler told Richard Chandler of the previous marriage during their courtship and also told him that she was divorced from Pablo Tovar. However, in May 1981, subsequent to the divorce between Richard and Rachel Chandler, Richard Chandler learned there was no record evidencing any divorce between Rachel Chandler and Pablo Tovar.

Thereafter, Appellant filed his bill of review, seeking to set aside the divorce decree. Appellant alleged and attempted to prove at trial that Rachel Chandler fraudulently induced him to marry her and as a result, their marriage was void. Further, Appellant alleged that he was unable to assert this meritorious defense to the prior divorce action because of the same fraudulent actions.

II. DISCUSSION

In his first point of error, Appellant argues the trial court erred in admitting testimony by Appellee which Appellant contends was hearsay. The specific testimony complained of was testimony by Appellee that a Mexican judge pronounced her divorced from her first husband, stating "I give her divorce." Prior to this testimony, Appellant properly objected and secured a "running objection" to cover any future admissions of the same evidence. In response to Appellant's objection, counsel for Appellee argued the testimony was being introduced to show "state of mind" and not for purposes of proving the truth of the matter asserted. The judge overruled Appellant's objection instructing the jury they were not to consider the testimony for the truth of the matter asserted but only to show "state of mind."

To obtain reversal based on error in admission or exclusion of evidence, an appellant must show the error was "calculated to cause and probably did cause rendition of an improper judgment." Tex.R.App.P. 81(b)(1); Gee v. Liberty Mutual Fire Insurance Company, 765 S.W.2d 394, 396 (Tex.1989).

Rule of Evidence 801 defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex.R.Civ.Evid. 801(d). See also Turner v. Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex.1982) (evidence of an out-of-court statement is hearsay only when offered to prove the truth of the matter asserted). Further, testimony is hearsay when its probative force depends in whole or in part on the credibility or competency of some person other than the person by whom it is sought of be produced. Texarkana Mack Sales, Inc. v. Flemister, 741 S.W.2d 558, 562 (Tex.App.--Texarkana 1987, no writ).

The statement by Appellee was not offered to prove that she was in fact divorced. Rather, it was offered to show that she believed she was divorced. Moreover, the probative force of the statement does not depend on the competency or credibility of the Mexican judge. Therefore, it is not hearsay.

Alternatively, Rule 803(3) provides an exception to the hearsay rule for statements regarding one's "then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will." Tex.R.Civ.Evid. 803(3). Normally, "[s]tatements admitted under this exception are ... spontaneous remarks about pain or some other sensation, made by the declarant while the sensation, not readily observable by a third party, is being experienced." Rosendorf v. Blackmon, 800 S.W.2d 377 (Tex.App.--Corpus Christi 1990, orig. proceeding); Ochs v. Martinez, 789 S.W.2d 949, 959 (Tex.App.--San Antonio 1990, writ denied). Although Appellant contends the statement does not properly fit under the 803(3) exception, authority exists providing that "[c]ommunications made or received by a person will often be relevant, not as evidence that the facts are as stated in the communication, but instead as tending to show the knowledge or belief of the person who communicated or received the statement." Thrailkill v. Montgomery Ward, 670 S.W.2d 382, 386 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Burleson v. Finley, 581 S.W.2d 304, 309 (Tex.App.--Austin 1979, writ ref'd n.r.e.); See also, Posner v. Dallas County Child Welfare, 784 S.W.2d 585, 587 (Tex.App.--Eastland 1990, writ denied); Security Ins. Co. v. Nasser, 755 S.W.2d 186, 193-94 (Tex.App.--Houston [14th Dist.] 1988, no writ). Moreover, where the question is whether a party has acted "prudently, wisely or in good faith, information on which he acted is original and material evidence and not 'hearsay.' " Duke v. Power Electric and Hardware Company, 674 S.W.2d 400, 404 (Tex.App.--Corpus Christi 1984, no writ); Globe Discount City v. Landry, 590 S.W.2d 813, 815 (Tex.App.--Waco 1979, writ ref'd n.r.e.). Therefore, Appellant's first point of error is overruled.

In his second and third points of error, Appellant attacks the legal and factual sufficiency of the jury's adverse finding on question one in the jury charge. Question one asked the jury whether Rachel Chandler fraudulently induced Richard Chandler to marry her. Implicit within this question is the issue of whether Rachel Chandler falsely represented to Richard Chandler that she had been divorced from Pablo Torres Tovar. Appellant relied on two pieces of evidence in an attempt to show fraudulent representations on Appellee's part: (1) the absence of any divorce decree between Rachel Chandler and Pablo Tovar, and (2) the fact that Rachel Chandler used inconsistent names when she first married Tovar and when she later married Richard Chandler.

As complainant in the instant bill of review, Richard Chandler was required to plead and prove: "(1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own." Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979); quoting Alexander v. Hagedorn, 148 Tex. 565, 568, 226 S.W.2d 996, 998 (Tex.1950). Rachel Chandler, on the other hand, assumed the burden of proving her original cause of action (i.e., divorce or validity of the marriage). Baker, 582 S.W.2d at 409. Thus, the first question the jury should have answered was whether Richard Chandler established by a preponderance of the evidence that the original divorce action was rendered as a result of fraud by Rachel Chandler. Baker, 582 S.W.2d at 409. This question should have been submitted in one broad issue, and "Conditioned upon an affirmative finding to this issue," the jury should have then determined whether the bill of review defendant, Rachel Chandler, proved the elements of her original cause of action. Id. [Emphasis in original].

Instead, the charge in the instant case divided what normally would have been one question into two separate questions. The charge read:

QUESTION 1

Do you find that prior to the marriage of Richard L. Chandler in question in this case, Rachel Chandler knowingly made false representations as to material facts to Richard Chandler with the intent to induce him to enter into that marriage and that Richard Chandler suffered a pecuniary loss as a proximate cause of his reliance on the representations?

You are instructed that when answering this question you are to limit your considerations to Rachel Chandler's representation, if any, that she had been divorced from Pablo Torres Tovar.

Answer "yes" or "no"

Answer: No

If you have answered "yes" to Question 1, continue on. If you have answered "no" to Question 1, then answer Question 9 and none other.

Question two, which the jury never reached, asked whether the fraud, if any, resulted in the entering of the original divorce decree. ¹

When the appellant is attacking the legal sufficiency of an adverse finding on an issue on which he had the burden of proof, i.e., challenging the jury's finding as a "matter of law," he must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989); see also Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982); Montes v. Texas Employers' Insurance Association, 779 S.W.2d 485 (Tex.App.--El Paso 1989, writ denied); Smith v. Central Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex.App.--Houston [14th Dist.] 1989, writ denied); Ritchey v. Crawford, 734 S.W.2d 85, 86 (Tex.App.--Houston [1st Dist.] 1987, no writ). This Court must employ a two prong test in reviewing a "matter of law" challenge. First, ...