Etienne v. DKM Enterprises, Inc.

• Decision Date: 12 October 1982
• Citation: 186 Cal.Rptr. 321,136 Cal.App.3d 487
• Court: California Court of Appeals Court of Appeals
• Parties: Bobby J. ETIENNE, Plaintiff and Appellant, v. DKM ENTERPRISES, INC., Defendant and Respondent. Civ. 21722.

Page 321

186 Cal.Rptr. 321

136 Cal.App.3d 487

Bobby J. ETIENNE, Plaintiff and Appellant, v. DKM ENTERPRISES, INC., Defendant and Respondent.

Civ. 21722.

Court of Appeal, Third District, California.

Oct. 12, 1982.

Clifton M. H. Higbe, Sacramento, for plaintiff and appellant.

Porter, Scott, Weiberg & Delehant, Steven Block and Bradley R. Larson, Sacramento, for defendant and respondent.

PUGLIA, Presiding Judge.

Raphel and Bobby Etienne commenced this action after Raphel injured his arm while attempting to cut down a tree with a chainsaw supplied by defendant. The first four causes of action of the complaint involve only Raphel and relate to the injuries he received in the accident. The fifth and sixth causes of action involve only plaintiff Bobby, Raphel's alleged common-law wife, who seeks damages for negligent infliction of emotional distress and for loss of consortium. Defendant moved for summary judgment as to the fifth and sixth causes of action. The motion was supported by competent proof that Bobby and Raphel were not legally married. Under the circumstances of this case, and as tacitly assumed by the parties, lawful marriage to Raphel is an essential element of Bobby's cause of action both for negligent infliction of emotional distress (Drew v. Drake [1980] 110 Cal.App.3d 555, 557-558, 168 Cal.Rptr. 65) and for loss of consortium (Tong v. Jocson [1977] 76 Cal.App.3d 603, 605, 142 Cal.Rptr. 726).

The trial court granted defendant's summary judgment motion, ruling that plaintiffs' counterdeclarations were insufficient as a matter of law to establish a common-law marriage under the laws of the state of Texas. The first four causes of action contained in the complaint relating to Raphel are not affected by the order granting summary judgment. Bobby appeals. We shall affirm.

I.

The appeal is taken from an order which does not dispose of all the causes of action in the complaint. We first consider whether such an appeal is cognizable. Although the trial court has authority to grant partial summary judgment (Code Civ.Proc., § 437c), the general rule is that such an order is reviewable only upon an appeal from the final judgment ultimately rendered in the case. (King v. State of California [1970] 11 Cal.App.3d 307, 310, 89 Cal.Rptr. 715; Swaffield v. Universal Ecsco. Corp. [1969] 271 Cal.App.2d 147, 173, 76 Cal.Rptr. 680.) The general rule does not apply, however, when one of multiple parties seeks review of a disposition which as to him leaves no issue to be determined. (See Justus v. Atchison [1977] 19 Cal.3d 564, 568, 139 Cal.Rptr. 97, 565 P.2d 122; Buckaloo v. Johnson [1975] 14 Cal.3d 815, 821, fn. 3, 122 Cal.Rptr. 745, 537 P.2d 865.) In this case, the order granting partial summary judgment disposed of all the causes of action involving Bobby. "[I]t better serves the interests of justice to afford prompt appellate review to a party whose rights or liabilities have been definitively adjudicated than to require [her] to await the final outcome of trial proceedings which are of no further concern to [her]." (Justus v. Atchison, supra, 19 Cal.3d at p. 568, 139 Cal.Rptr. 97, 565 P.2d 122.) Accordingly, we deem the order granting partial summary judgment, under the facts of this case, to be appealable. (California State Employees' Assn. v. State of California (1973) 32 Cal.App.3d 103, 106, fn. 1,) 108 Cal.Rptr. 60.

II.

We must determine whether the trial court correctly ruled the counterdeclarations submitted by Bobby and Raphel, the sole evidence in support of their claim of a common-law marriage, are insufficient as a matter of law to raise an issue of fact.

In California, only ceremonial marriages may be contracted. (Civ.Code, § 4100.) However, California does recognize common-law marriages validly created in states which allow such marriages. (Civ.Code, § 4104; Colbert v. Colbert [1946] 28 Cal.2d 276, 280, 169 P.2d 633.) Texas is one of those states.

Texas Family Code Annotated, title 1, section 1.91 (Vernon 1975), provides in pertinent part: "(a) In any judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that: ... [p] (2) they agreed to be married, and after the agreement they lived together in this state as husband and wife and there represented to others that they were married...."

Bobby and Raphel are California domiciliaries. In their counterdeclarations, Bobby and Raphel declare they have lived together (in California) for more than eight years and have on more than one occasion vacationed in the state of Texas where they remained for as long as seven to eight days. While in Texas they agreed and understood they were married and there told family members they were married.

The trial court ruled this evidence insufficient as a matter of law to satisfy the Texas requirements of a valid common-law marriage. We agree. The evidence fails to establish cohabitation or holding out in the state of Texas.

In Kelly v. Consolidated Underwriters (Tex.Civ.App.1927) 300 S.W. 981, affirmed in Consolidated Underwriters v. Kelly (Tex.Com.App.1929) 15 S.W.2d 229, the appellant sought to collect death benefits as the wife of a deceased worker killed in an industrial accident. Appellant and deceased had lived together, holding themselves out as husband and wife continuously for eighteen years in Louisiana, a state in which common-law marriages could not be consummated. During four years of this period the deceased had been temporarily employed in several nearby states, including Texas, in which common-law marriages could be consummated. Appellant had visited him in all of these states for periods of one to three months during which she and the deceased cohabited and held themselves out as husband and wife. On the facts shown, the Texas Court of Civil Appeals denied legal effect to the relationship, characterizing as a "temporary sojourn" the habitation of the deceased and appellant in the states providing for common-law marriages which "did not convert their illegal relations into a lawful marriage." (300 S.W. at p. 982.)

The weight of authority elsewhere also holds that a brief sojourn in a state in which common-law marriage can be consummated does not satisfy the requirement of cohabitation necessary to validate such a marriage.

In re Estate of Stahl (1973) 13 Ill.App.3d 680, 301 N.E.2d 82, is a case in point. Plaintiff sought to assert her right to the intestate share of decedent's estate based on the claim that she and decedent lived together in Illinois. At one point during their relationship the parties traveled to Texas for a period of three days for the purpose of vacation and consideration of Texas as a future retirement site. The evidence suggested the parties held themselves out as husband and wife during their stay in Texas and privately exchanged marital vows in their hotel room. In denying plaintiff's claim, the court held: "Assuming that the agreement between the parties and the representations made to others while in Texas sufficiently meets two requirements of the statute, it is questionable whether the brief visit satisfies the third requirement of cohabitation within that state. Such provision could easily be construed as a self-imposed jurisdictional limitation to prevent mere transients from declaring themselves legally married under Texas law." (In re Estate of Stahl, supra, 301 N.E.2d at p. 84; accord, Grant v. Superior Ct. In And For County of Pima [1976] 27...