Gallegos v. Wilkerson

• Decision Date: 23 September 1968
• Docket Number: No. 8605,8605
• Citation: 1968 NMSC 156,445 P.2d 970,79 N.M. 549
• Parties: Rosana GALLEGOS, Appellant, v. Martha WILKERSON, aka Martha Holmes, Appellee.
• Court: New Mexico Supreme Court

Page 970

445 P.2d 970

79 N.M. 549

Rosana GALLEGOS, Appellant, v. Martha WILKERSON, aka Martha Holmes, Appellee.

No. 8605.

Supreme Court of New Mexico.

Sept. 23, 1968.

Rehearing Denied Oct. 29, 1968.

Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for appellant

J. Benson Newell, Las Cruces, for appellee.

OPINION

MOISE, Justice.

The question for determination is which of two persons, Rosana Gallegos or Martha Holmes, is the surviving spouse of Amarante Gallegos, deceased, also known as Bert Holmes.

The court found that decedent and Martha consummated a common law marriage in El Paso, Texas in November, 1937; that a subsequent purported civil marriage to Rosie Overstreet (Rosana) in Los Lunas, New Mexico on February 25, 1942 was void because at the time decedent was legally married to Martha, with whom he continued to live until his death in 1964. Based on these findings, the court concluded that Martha was the surviving spouse and that she was entitled to administer the estate and should be substituted as administratrix.

Rosana appeals, asserting two grounds, viz., that the court erred in refusing to find a common law marriage between deceased and Rosana in Colorado in 1922, and that it erred in finding a common law marriage between decedent and Martha in Texas in 1937.

The following facts, testified to by Rosana, are uncontradicted in the record and, she claims, required a finding of a common law marriage between herself and decedent in Colorado in 1922. Rosana was born December 21, 1905 and met decedent in San Luis, Colorado; because Rosana's mother would not consent to a civil marriage of the two, they agreed to live together as husband and wife; decedent gave her a wedding ring inscribed with the date, March 27, 1922; they exchanged vows and lived together in San Luis, Colorado, holding themselves out as husband and wife. Rosana had three children by decedent; the first was born in New Mexico on September 4, 1924, about three months after they moved to New Mexico and, accordingly, must have been conceived in Colorado; the third child was born in Las Cruces in November, 1930. A birth certificate was introduced in evidence showing the parents of this last child as Bert Holmes and Bertha Mayers, claimed by Rosana to be an alias used by her to avoid detection.

Rosana testified that in 1935 she took the children and moved to Albuquerque because decedent was running around with Martha, but that he visited her frequently in Albuquerque and sent as much money as he was able for support.

The court found that on June 16, 1924 decedent married one Ursilita Bedan in Colorado, that they had one child, and were divorced March 22, 1937. As already noted, Rosana and decedent went through a civil marriage in 1942, but he evidently continued to live with Martha until his death in 1964.

Based on the above facts, did the court err when it failed to find a valid common law marriage established between decedent and Rosana in Colorado? If there were a common law marriage, and no divorce followed, it would seem clear that they remained husband and wife until his death. Poteet v. Poteet, 45 N.M. 214, 114 P.2d 91 (1941). In addition, although a valid common law marriage may not be consummated in New Mexico, In re Gabaldon's Estate, 38 N.M. 392, 34 P.2d 672, 94 A.L.R. 980 (1934), if valid where consummated, it will be recognized in New Mexico. § 57--1--4, N.M.S.A.1953; State v. Brem, 51 N.M. 63, 178 P.2d 582 (1947).

The foregoing detailing of facts testified to in the record notwithstanding, what is the situation when a trial court is requested to find the existence of a fact (the common law marriage in Colorado) and refuses to do so? The court here did not specifically find to the contrary, but made no finding on the issue, and then found a valid common law marriage between decedent and Martha entered into in 1937. The refusal or failure to make a requested finding on a material issue is held by us to be in effect a finding against the party having the burden of proof. J. A. Silversmith, Inc. v. Marchiondo, 75 N.M. 290, 404 P.2d 122 (1965); Stienbaugh v. Payless Drug Store, Inc., 75 N.M. 118, 401 P.2d 104 (1965). The burden of proving a common law marriage valid in Colorado being upon Rosana, the failure to so find is, under the above rule, a finding that no such marriage occurred.

Although the evidence was probably sufficient to support a finding of a valid marriage, was it error to find otherwise? We conclude that it was not. While we fully recognize that a court may not disregard uncontradicted evidence on a material issue and find to the contrary thereof, in the case of Medler v. Henry, 44 N.M. 275, 101 P.2d 398 (1940), we set down certain circumstances that would be considered as relieving a characterization of it as arbitrary. These were stated as follows:

'(a) That the witness is impeached by direct evidence of his lack of veracity or of his bad moral character, or by some other legal method of impeachment.

'(b) That the testimony is equivocal or contains inherent improbabilities.

'(c) That there are suspicious circumstances surrounding the transaction testified to.

'(d) That legitimate inferences may be drawn from the facts and circumstances of the case that contradict or cast reasonable doubt upon the truth or accuracy of the oral testimony.'

When we consider the testimony of Rosana in the light of these considerations we perceive that circumstances were present which could be considered as casting a measure of suspicion on the facts as they otherwise appear, and that certain permissible inferences contrary to the facts as testified to could reasonably be drawn. We mention only a few. The marriage contracted with Ursilita Bedan in June, 1924 is certainly evidence that would raise a question concerning Amarante's intention or belief that he was married to Rosana in 1922. Similarly, his relations with other women after coming to New Mexico and while living with Rosana, as testified to by her, although concededly indulged by some married men, may be considered as raising some question as to whether he considered himself married to Rosana. Although the civil marriage in 1942 can be explained as being entered into merely for the purpose of making a record of or ratifying the 1922 marriage, it can also be looked upon as a recognition that the parties were not married. It should not be necessary to detail more to demonstrate the suspicious circumstances present, or the possible legitimate inferences contrary to the testimony from the witness stand. It follows that the issue of Rosana's claimed common law marriage to Amarante in Colorado in 1922 is ruled against her.

How about Martha's claimed marriage in 1937 in Texas? The proof concerning it was not materially more convincing in the record than that of Rosana's. However, the court found as a fact that a common law marriage took place between Martha Wilkerson and Bert Holmes in El Paso,...