Davis v. Davis

• Decision Date: 20 March 1974
• Docket Number: No. 932,932
• Citation: 507 S.W.2d 841
• Parties: Mary Nell DAVIS et al., Appellants, v. Nancy Kway DAVIS et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 841

507 S.W.2d 841

Mary Nell DAVIS et al., Appellants, v. Nancy Kway DAVIS et al., Appellees.

No. 932.

Court of Civil Appeals of Texas Houston (14th Dist.).

March 20, 1974.

Rehearing Denied April 17, 1974.

J. C. Zbranek, C. T. Hight, Zbranek, Friend & Hight, Liberty, Neal J. Iverson, Dayton, for appellants.

R. E. McDaniel, Winnie, for appellees.

COULSON, Justice.

This is an appeal from a proceeding to determine heirship and to remove an administratrix. The appellant Mary Nell Davis (Mary), the widow of the deceased, Charles Mason Davis, is joined on appeal by her minor children, Charles Delary Davis and Bessie Nell Davis, and by the adult children of the deceased by a prior marriage, Beverly Nell Davis Lange and Lawrence Riley Davis. Nancy Kway Davis (Nancy) and her minor child by the deceased, Nancy Melissa Davis, are appellees. The district court, after a trial de novo on appeal from the county court, refused to remove Nancy as administratrix and held her to be the putative wife of the deceased. The trial court also held that Bessie Nell Davis, Mary's second child, was not the daughter of the deceased.

The primary question is the validity of the Lord Mansfield rule.

Charles Mason Davis originally married in 1951, and Beverly Nell Davis Lange and Lawrence Riley Davis are the children of this marriage. This first marriage was terminated by divorce in 1965. In 1966 Charles Davis married a second time. This marriage terminated in divorce in 1967, and he married Mary in the same year. Charles Delary Davis was born in 1967. After entering the third marriage, the deceased worked on off-shore oil rigs in South America, and he went to Australia in 1967 to do similar work for the Reading & Bates Offshore Drilling Company. In 1968 he was transferred to Singapore. On October 2, 1968, the deceased engaged in a Buddhist wedding ceremony with Nancy and signed a Chinese marriage contract. They lived together as husband and wife in Singapore. Sometime after this marriage ceremony, a copy of Mary's divorce petition arrived at the couple's apartment in Singapore (the divorce was never prosecuted to completion). Charles Mason Davis drowned as a result of a ship collision in the Sea of Java on December 24, 1970. Approximately one month later, Nancy Melissa Davis was born to Nancy, and Bessie Nell Davis was born to Mary.

The deceased (who died intestate) left a $50,000 life insurance policy with his estate named as beneficiary, as well as $1,399.88 in wages and a boat and motor. Nancy was appointed administratrix in Chambers County and (two weeks later) Mary was appointed administratrix in Liberty County.

Nancy and Mary each plead that she was the legal wife of the deceased. At trial the personnel manager of Reading & Bates testified from office records that the deceased had worked for the company in Australia, Singapore, and Iran. The manager also stated that the deceased usually worked in shifts of two weeks on an oil rig and one week off, and that the company's records would not necessarily indicate any trip back to the United States in the deceased's free time. Mary testified, over the objection of her attorney, that she had not seen the deceased since 1969. Nancy testified, over appellants' objection on the basis of the Dead Man's Statute, that the deceased had told her he was divorced before their marriage. Nancy also stated that she learned of Mary's divorce proceeding during her own marriage. The father and step-mother of the deceased testified that, as far as they knew, the deceased was last in the United States in December, 1969.

Appellants introduced a copy of the laws of the Republic of Singapore, specifically the 'Women's Charter' which they asserted to be Singapore's code regulating marriage. Appellants demonstrated that the Singapore marriage violated this code in numerous respects. A document from the Registrar of Marriages in Singapore stated that Nancy's marriage had never been registered. The parties stipulated that a search of the records of the State of Queensland, Australia, failed to show any divorce granted to the deceased during the appropriate time period. A certificate from the registrar of records in Singapore was admitted stating that no divorce was granted to the deceased there.

The trial court held that Mary was the legal widow of the deceased and that Nancy was the putative wife, because she had acted in good faith at all times and was 'ignorant of the fact that the said Charles Mason Davis was legally married to Mary Nell Davis.' The court also found that Bessie Nell Davis was not the daughter of the deceased. The court held Mary's application to remove Nancy as administratrix to be a collateral attack and denied the request. The court awarded one-half of the estate to Nancy, one-quarter to Mary, and the final one-quarter in equal shares to the two children of the deceased's first marriage, Mary's first child, and Nancy's child. The boat and motor was held to be separate property, and an undivided one-third interest went to Mary with the four children receiving undivided one-sixth interests each.

Appellants argue that Nancy never had a valid ceremonial marriage with the deceased and that, even if she had, her good faith was destroyed when she received the copy of the divorce petition. They also assert that, when the Lord Mansfield rule is applied and all the incompetent testimony stricken, there is no evidence or insufficient evidence to overcome the presumption of legitimacy of Mary's second child. Appellees assert that Nancy's marriage was a valid legal marriage, that the presumption that a divorce was obtained in support of the last legal marriage was not rebutted, and that Nancy was not sufficiently apprised of Mary's marriage to destroy Nancy's good faith. Appellees also challenge the Lord Mansfield rule as a violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The parties agree that Section 42 of the Probate Code, V.A.T.S., legitimates Nancy's child whether the marriage is now held valid or not. (Tex.Prob.Code Ann. sec. 42 (1956) provides in pertinent part: 'The issue of marriages deemed null in law shall nevertheless be legitimate.')

Two procedural points which greatly simplify the issues here must be addressed. First, the appellees wish to rely upon the presumption that an appellate court must assume that the trial court found all fact issues having support in the evidence in favor of the judgment in the absence of findings of fact. However, the trial court's judgment itself contains specific findings of fact and specific conclusions of law separately grouped. The fact that findings and conclusions under Rule 296, Texas Rules of Civil Procedure, are not filed separately from the judgment does not effect their validity. City of Dallas v. Haworth, 218 S.W.2d 264 (Tex.Civ.App.--Dallas 1949, writ ref'd n.r.e.).

The second procedural point is that the appellees cannot now complain for the first time by cross-point that the trial judge erred in not finding that Nancy had a legal, rather than putative, marriage. In a trial before the court, a motion for new trial is not required as an appellate predicate by Rule 324, Tex.R.Civ.P., and an appellee may present cross-points even though he has not perfected his appeal. However, when an appellee in a judge-tried case has not excepted to the judgment, given notice of appeal, or apprised the trial judge in any way of his dissatisfaction, his cross-points must be overruled. Security Insurance Co. v. Pioneer Casualty Co., 449 S.W.2d 158 (Tex.Civ.App.--Houston (1st Dist.) 1969, writ ref'd n.r.e.); Maloney v. Strain, 410 S.W.2d 650 (Tex.Civ.App.--Eastland 1966, no writ). In the instant case, the appellees could have tendered alternate findings of fact to the effect that Nancy had a legal marriage. Since the appellees cannot now argue that Nancy had a legal rather than a putative marriage, they cannot rely on the presumption that a divorce was obtained before the later legal marriage. (The common law presumption is now codified. Tex.Fam.Code Ann. § 2.01, V.T.C.A. (1973)). Similarly, the appellees' argument that Mary never had a legal marriage with the deceased despite the trial judge's finding has been waived.

Appellants assert that a putative marriage can never exist absent a marriage ceremony attended by all the formalities prescribed by the law of the place of the ceremony. In re Greathouse's Estate, 184 S.W.2d 317 (Tex.Civ.App.--San Antonio 1944, no writ). Since the appellants allege that they have proven the applicable law of Singapore and that Nancy's ceremony was in violation of it, they contend she never had a putative marriage. The more equitable doctrine would seem to be that a ceremony in disregard of the prescribed formalities merely destroys the presumption of good faith, upon which the wife could otherwise rely, rather than the putative marriage itself. O. Speer, Marital Rights in Texas § 51 (4th ed. 1961). However, in the view we take of this case, Nancy's good faith at the inception of her marriage is irrelevant.

A putative marriage is one in which one or both of the spouses enter into in good faith, but is invalid because of an existing impediment. The impediment is typically a prior and continuing marriage by one of the spouses. A putative marriage exists only for so long as the one good-faith spouse remains in ignorance of the impediment. Curtin v. State, 155 Tex.Cr.R. 625, 238 S.W.2d 187 (1951); United States Fidelity & Guaranty Co. v. Henderson, 53 S.W.2d 811 (Tex.Civ.App.--Amarillo 1932, no writ). This rule is required by the very definition of putative marriage, because the lack of good faith on the part of both parties means that the relationship continues as meretricious. The issue in the instant case is what type of notice constitutes knowledge of the impediment on the part of the good-faith spouse.

On the cross-examination of Nancy by the appellants'...