Ganesan v. Vallabhaneni, 03-01-00288-CV.

• Decision Date: 21 March 2002
• Docket Number: No. 03-01-00288-CV.,03-01-00288-CV.
• Citation: 96 S.W.3d 345
• Parties: Apparajan GANESAN, Appellant, v. Sudha VALLABHANENI, Appellee.
• Court: Texas Court of Appeals

96 S.W.3d 345

Apparajan GANESAN, Appellant, v. Sudha VALLABHANENI, Appellee.

No. 03-01-00288-CV.

Court of Appeals of Texas, Austin.

March 21, 2002.

Rehearing Overruled April 18, 2002.

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Nicolai Von Kreisler, Von Kreisler & Swanson, P.C., Austin, for appellant.

Elizabeth G. Bloch, Hilgers & Watkins P.C., William D. Powers, Piper & Powers, L.L.P., Austin, for appellee.

Before Chief Justice ABOUSSIE, Justices YEAKEL and PURYEAR.

ABOUSSIE, Chief Justice.

Appellant Apparajan Ganesan appeals the district court's interlocutory order that he and Sudha Vallabhaneni were married at common law, as well as the subsequent final decree of divorce dividing their marital estate. In three issues, appellant contends that: (1) he is entitled to a new trial because the record of the six-day jury trial resulting in the common law ruling is incomplete; (2) the district court erred in rendering a judgment of common law marriage; and (3) the district court erred in the characterization and division of the parties' property in the final divorce decree. We will affirm the judgment of the district court.

BACKGROUND

In 1994, Ganesan responded to Vallabhaneni's matrimonial advertisement in a magazine, and the two began a relationship. Soon after, the couple began contemplating a formal marriage. During the third week of February 1995, Vallabhaneni moved from California to live with Ganesan in Austin. At times throughout the relationship, the parties publicly held themselves out to be married.

In August 1996, the couple separated, and Vallabhaneni sought a protective order against Ganesan. Ganesan violated the protective order, and while serving a fourteen-day sentence, he solicited another inmate to have Vallabhaneni murdered. In 1997, Ganesan filed for bankruptcy, and during negotiations he solicited a second individual to have Vallabhaneni and her attorney murdered. Ganesan was convicted of two counts of solicitation to commit murder, and this Court affirmed that conviction relating to acts against Vallabhaneni. See Ganesan v. State, 45 S.W.3d 197 (Tex.App. — Austin 2001, pet. ref'd).

The parties tried the common law marriage issue to a jury and thereafter tried the remaining issues before the court. In January 1998, the district court rendered interlocutory judgment on the jury's verdict that Vallabhaneni and Ganesan were married at common law on February 23, 1995. On February 21, 2001, the district court signed a final decree of divorce.

DISCUSSION

Incomplete Reporter's Record

In his first issue, appellant argues that because the record of the jury trial is incomplete, he is entitled to a new trial. See TEX.R.APP. P. 34.6(f). The jury trial began September 8, 1997, and lasted six days. The court reporter destroyed the notes and tapes of the proceedings for September 9 and 10 after the expiration of three years. Ganesan did not request that the reporter prepare the record until May 2001. The two missing days included appellee's testimony during the jury trial portion of the cause.

Court reporters are permitted to destroy records after three years. See Tex. Gov't Code Ann. § 52.046(a)(4) (West 1998); see also Piotrowski v. Minns, 873 S.W.2d 368, 370 (Tex.1993) ("By negative implication, the statute authorizes reporters to cull stale notes from their records after three years from the date on which they were taken."). Ganesan argues he is entitled to a new trial because he "timely requested" the record and it was lost or destroyed "without appellant's fault." See TEX.R.APP. P. 34.6(f).

The Texas Supreme Court has expressly held that "[i]f a litigant has not requested the reporter to prepare a statement of the facts within three years, nor specifically requested that the notes of a proceeding be preserved beyond three years, then the litigant is not free from fault...." See Piotrowski, 873 S.W.2d at 371. Because Ganesan could have requested the reporter to prepare the record within three years of the proceeding, or at minimum requested that the record be preserved, he is not free from fault. Accordingly, he is not entitled to a new trial. See id. at 370 (holding appellant is not entitled to a new trial unless the reporter's notes have been lost or destroyed without appellant's fault and the parties cannot agree on a statement of facts).¹

Appellant argues that his request for the reporter's record was timely because it was made "at or before the time for perfecting appeal." See TEX.R.APP. P. 34.6(b)(1). Rule 34.6(f) clearly requires a timely request and loss or destruction of the reporter's notes without appellant's fault before he is entitled to a new trial. See TEX.R.APP. P. 34.6(f)(1) & (2). Because appellant is not free from fault, the fact that his request may have been timely under Rule 34.6(b)(1) is irrelevant. Accordingly, we overrule appellant's first issue.

Jury Charge

In his second issue, appellant argues that the district court erred by: (1) failing to properly instruct the jury on common law marriage, and (2) refusing to admit into evidence a letter from appellee's mother suggesting a possible future marriage date.

The standard of review for error in the jury charge is abuse of discretion. Texas Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). A trial court abuses its discretion only when it acts without reference to guiding rules or principles. Id. To determine whether an alleged error in the jury charge requires reversal, the reviewing court must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Island Recreational Dev. Corp. v. Republic of Tex. Say. Ass`n, 710 S.W.2d 551, 555 (Tex.1986); Allen v. Allen, 966 S.W.2d 658, 660 (Tex.App. — San Antonio 1998, pet. denied). Alleged error will be deemed reversible only if, when viewed in light of the totality of the circumstances, it amounted to such a denial of the rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper judgment. TEX. R.APP. P. 44.1(a)(1); In re A.V., 57 S.W.3d 51, 62 (Tex.App. — Waco 2001, no pet.).

Ganesan complains of the district court's instruction to the jury regarding common law marriage. Section 2.401(a)(2) of the Family Code provides that "the marriage of a man and woman may be proved by evidence that ... the man and woman 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." Tex. Fam.Code Ann. § 2.401(a)(2) (West 1998). The jury instruction in the present case tracks the language of the code: "A man and a woman are married if they agreed to be married and after the agreement they lived together in Texas as husband and wife and there represented to others that they were married." Based on this instruction, the jury found that appellant and Vallabhaneni were married as of February 23, 1995.

The district court rejected the following set of instructions submitted by appellant:

Living Together in Texas. An agreement to marry in the future, coupled with cohabitation, will not establish a marriage. Leal v. Moreno, 733 S.W.2d 322 (Tex.App. — Corpus Christi 1987). Merely living with a person of the opposite sex and having a sexual relationship with that person is not enough to establish a marriage. Tompkins v. State, 774 S.W.2d 195 (Tex.Crim.App.1987).

Representation to Others. The element of representing to others is not satisfied by an occasional uncontradicted reference to a cohabitant as "my wife" or "my husband" or "mine." Such statements will not prove a tacit agreement to be married without corroboration. Statements referencing someone as their "husband" or "wife" made in a self-serving context do not have to be taken as true statements when determining if the parties had an agreement to be married. Russell v. Russell, 865 S.W.2d 929 (Tex. 1993).

Continuity of Existence of Marriage. One cannot both declare to be single and married. A party cannot drop in and out of marriage based on the financial opportunities or advantages that status presents on different days. Fuentes v. TransAmerican Nat'l Gas Corp., 933 S.W.2d 624 (Tex.App. — San Antonio 1996, n.w.h.).²

Appellant contends that because the evidence supported the submission of these instructions to the jury, the trial court erred by not giving them. We disagree.

Trial courts are charged with submitting "such instructions and definitions as shall be proper to enable the jury to render a verdict." St. Joseph Hosp. v. Wolff, 999 S.W.2d 579, 586 (Tex.App. — Austin 1999, no pet.). The trial court's latitude in this area is even greater than in the area of jury questions. Oadra v. Stegall, 871 S.W.2d 882, 889 (Tex.App. — Houston [14th Dist.] 1994, no writ). "If the charge resolves the controlling issues raised by the pleadings and any evidence in a feasible manner that does not confuse the jury, no error occurs." Connell Chevrolet Co. v. Leak, 967 S.W.2d 888, 894 (Tex.App. — Austin 1998, no pet.). In the present case, the district court's instruction made it clear to the jury that it could find the parties were informally married only if it found: (1) an agreement to be married, (2) after the agreement, the couple lived together in Texas as husband and wife, and (3) the couple represented to others that they were married. See Russell v. Russell, 865 S.W.2d 929, 932 (Tex. 1993). This instruction is consistent with both the applicable Family Code provision and the Texas Pattern Jury Charge. See Tex: Fam.Code Ann. § 2.401(a)(2); Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges Family P3C 201.4A (2000). As such, we cannot say that the district court's instruction mounted to an abuse of discretion. St. Joseph Hosp., 999 S.W.2d at 586.

Even if the district court's failure to give the instruction constituted error, however, appellant does not contend that the charge amounted to such...