Gonzalez v. Gonzalez, 4353.

• Decision Date: 18 November 1943
• Docket Number: No. 4353.,4353.
• Citation: 177 S.W.2d 328
• Parties: GONZALEZ v. GONZALEZ.
• Court: Texas Court of Appeals

Page 328

177 S.W.2d 328

GONZALEZ v. GONZALEZ.

No. 4353.

Court of Civil Appeals of Texas. El Paso.

November 18, 1943.

Appeal from District Court, Maverick County; Brian Montague, Judge.

Action by Primitevo Gonzalez against Josefa Carillo Gonzalez for divorce. From a judgment denying divorce, plaintiff appeals.

Judgment affirmed.

David E. Hume, of Eagle Pass, for appellant.

No counsel for appellee.

McGILL, Special Commissioner.

Appellant prosecutes this appeal from a judgment of the District Court of Maverick County, denying him a divorce from appellee. As the sole ground for divorce his petition alleged: "5. About November 30, 1941, defendant, at or near Merrill, Michigan, committed adultery with some person by name unknown to plaintiff." The judgment recites that the court "is wholly unsatisfied with the sufficiency of plaintiff's evidence to establish the allegations in his petition made, and finds as a fact that no ground exists upon which a decree of divorce would be authorized." Appellee made no appearance in the trial court and has filed no brief in this court. Trial was to the court without a jury, and at the request of appellant the court filed findings of fact and conclusions of law, from which we reproduce the following:

"I Find That:

"* * * * * *

"2. Plaintiff was married to the defendant, Josefa Carillo Gonzalez, on the 29th day of January, 1938, at Eagle Pass, Texas and that subsequent to said marriage three children have been born to the said Josefa Carillo Gonzalez, to-wit: Arturo, a boy four years of age; Eulalio, a boy two years of age, both of whom are in the present custody of the plaintiff; and from the evidence, another child, whose name and sex are not made to appear and who is neither mentioned nor referred to in plaintiff's petition herein, was born about ten months subsequent to October 27, 1941.

"3. That according to the pleadings, and as testified to by the plaintiff, he had not lived with his wife since October 27, 1941, but that about ten months subsequent to that date his wife gave birth to a child, which child is neither named nor classified as to sex either in the pleading or testimony.

"4. D. E. Hume, attorney for plaintiff, testified that on the occasion of service of process upon the defendant in this cause she stated that she had given birth to a child, the father of whom was some one other than her husband, and that she had related the same story at his house.

"I Conclude That:

"1. The only ground for divorce stated or alleged in plaintiff's petition is the following: (same as quoted above,) which allegation is sought to be established, indirectly by the plaintiff's testimony, that he had not lived with his wife since October 27, 1941, and, inferentially, therefore, the child alleged to have been born approximately ten months thereafter was not the child of himself and his wife, thus, also inferentially, attempting to prove defendant's alleged adultery, impliedly and indirectly in this manner denying the paternity of a child born to his wife during wedlock with himself. Inasmuch as paternity can not be denied, the alleged act of adultery can not thus be indirectly established, and there was therefore no relevant admissible testimony before the court to establish the allegations made in plaintiff's petition.

"2. Inasmuch as plaintiff's petition names two children only, as born to the plaintiff and defendant during their marriage, and the evidence having established the fact that a third child was born to the defendant during the existence of the marriage relationship between the parties, plaintiff's petition is, in itself, insufficient, under the statute as amended, to authorize the hearing and determination of this cause.

"3. From the foregoing I conclude that the evidence introduced is wholly unsatisfactory to establish the ground alleged in the petition for a divorce, and that the petition and prayer for divorce should be and it was in all things refused and denied."

The appeal is predicated on two grounds: (1) The court's error in holding incompetent the declarations of appellee to effect that more than ten months after opportunity of access of appellant to her, she bore a child by another man; (2) error in the holding that such child need be named in the petition.

It is questionable whether the first point finds sufficient support in the record to warrant its consideration. There is no evidence that appellee ever stated or told anyone that she had given birth to a child more than ten months after opportunity of access of appellant to her. The evidence goes no further than that she told appellant's attorney and the deputy sheriff that "she had given birth to a child, the father of whom was some one other than her husband." It was appellant who testified that the birth occurred "ten months" after he had last been with her. Furthermore, the court's conclusions of law do not specifically hold that her alleged declaration is not competent to prove the act of adultery alleged. The evidence specifically referred to in the conclusions is appellant's testimony to effect that he had not lived with appellee since October 27, 1941, and the inference therefrom that the child alleged to have been born approximately ten months thereafter was not the child of himself and his wife, from which the alleged act of adultery might also be inferred. But from the language, "there was therefore no relevant admissible testimony before the court to establish the allegations made in plaintiff's petition," it might be inferred that the court regarded such declaration inadmissible and incompetent, rather than that such declaration, if made, or the testimony of appellant's attorney that it was made, as "wholly unsatisfactory." We shall therefore consider the point. Also it should be observed that from an inspection of the statement of facts, it appears that the only evidence supporting the finding that appellant had not lived with his wife since October 27, 1941, and that about ten months subsequent to that date she gave birth to a child, is appellant's testimony to that effect, which the court concluded was not "relevant admissible testimony." No error is assigned to this conclusion, and it cannot be considered as fundamental error, but we shall discuss it because it presents the same question as that raised as to the competency of the alleged declaration of appellee.

It is a rule of universal application that a child born in lawful wedlock is presumed to be legitimate. Jones on Evidence, Vol. 1, Sec. 93, p. 448; Texas Law of Evidence, McCormick & Ray, Sec. 50, p. 87. Another rule, generally accepted, though sometimes criticized, is that in proceedings where legitimacy of a child is directly in issue, declarations of the husband or wife for the purpose of showing non-access for a period in excess of the normal period of gestation, or otherwise assailing the legitimacy of the child, will not be received to rebut this presumption. Jones on Evidence, Secs. 97 and 97a, pp. 464, 469; Texas Law of Evidence, McCormick & Ray, Sec. 50, p. 88; 6 Tex.Jur. p. 370, Sec. 14. The rule was thus enunciated by Lord Mansfield in 1777, in Goodnight's Case (98 Eng. Reprint, 1257; 11 Eng. Ruling Cases, 518): "The law of England is clear, that the declarations of a father or mother cannot be admitted to bastardize the issue. * * * As to the...