Gress v. Gress

• Decision Date: 18 March 1948
• Docket Number: No. 11941.,11941.
• Parties: GRESS v. GRESS.
• Court: Texas Court of Appeals

209 S.W.2d 1003

GRESS v. GRESS.

No. 11941.

Court of Civil Appeals of Texas. Galveston.

March 18, 1948.

Rehearing Denied March 18, 1948.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Suit by Russell H. Gress against Jennie Lowe Gress to annul marriage. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

Hutcheson, Taliaferro & Hutcheson and Thad T. Hutcheson, all of Houston, for appellant.

Frank E. Mann and Kenneth H. Aynesworth, Jr., both of Houston, for appellee.

CODY, Justice.

This suit was brought under R.C.S. Art. 4628 by appellant on May 19, 1947, against appellee to annul the marriage relation that was contracted by them on December 13, 1946. The impediment urged by appellant as rendering the marriage contract void, within the meaning of aforesaid statute, was the disability imposed on appellee by R.C.S. Art. 4640, to contract a new merriage within twelve months after April 1, 1946, the date she was decreed a divorce from her former husband on the grounds of cruelty.

Appellant's petition, so far as deemed material to present the material issues, was to the effect that following the purported marriage he and appellee lived together some three months when they separated permanently about March 15, 1946; that at the time the ceremony was performed and until a short time before the filing of his petition, he did not know of the impediment which prevented appellee from forming a valid marriage; that had he known thereof he would not have attempted to marry her; that immediately upon learning of appellee's impediment (i. e., that she obtained a divorce upon the ground of cruelty, and learned that the law forbad marriage thereafter for twelve months except as between the parties to such divorce) "plaintiff assumed and has consistently maintained the position at all times material hereto that his marriage is not valid in law, but is subject to legal dissolution and that same should be dissolved and declared null and void; * * *."

Appellee's answer, so far as material on appeal, was to the effect that after a regular ceremonial marriage was performed on December 13, 1946, she and appellant lived together as man and wife until March 15, 1947, when because of appellant's conduct they separated; that because of their marriage and the assumption by the parties of marital relations, the plaintiff is thereby and now estopped. She further alleged: That appellant knew of her divorce of April 1, 1946; that he knew of the nature of the pleadings in that cause and discussed same with appellee; that he persistently proposed marriage to her, and when his proposal was accepted, he obtained the license, caused the ceremony to be performed; that he lived with appellee as stated until March 15, 1947, when he became angry because appellee refused his request to sell her property and provide him with funds for his own use. That after the separation appellant sought to have appellee get a divorce, and made a separation agreement, etc.

The Court, trying the case without a jury, refused to annul the marriage. Thereafter in response to appellant's request, the court filed conclusions of fact and law. Among the findings of fact were these: (3) After months of wooing, appellant finally persuaded appellee to marry him. Then, about December 11, 1946, appellant phoned his former home in Chicago, where his former wife had divorced him, and learned upon such inquiry that such divorce against him had become final. (4) Appellee then phoned the lawyer who had represented her in her divorce suit and was told that there was no reason why she should not then marry. (5) That previous to her marriage with appellant, appellee had fully discussed the facts of her divorce with him. (6) That after appellant and appellee were formally married, and when they were cohabiting as man and wife, he tried to persuade her to sell her house and turn the money over to him. Thereafter she refused to live with him because he failed to support her and sought to dissipate her property. (7) Thereafter appellant offered to make a settlement on appellee if she would divorce him, but the parties could not come to terms. The Court found among other things that appellant finally left appellee about the middle of March, 1947.

The Court made certain additional findings at the request of appellant, and declined to make others, and declined as well to make certain requested amended findings. What the additional conclusions were which the court declined to make, whether of law or fact, we think it not necessary to set out.

Appellant predicates his appeal upon twelve points. Points 1-3, inclusive, complain of the court's refusal to make certain conclusions of law. Points 4-9, inclusive, complain of the court's action in making certain findings, and refusal to make certain others. Point 10 complains of the court's legal conclusion that appellant is estopped to have the marriage annulled. Point 11 complains that the judgment rendered is not sustained by the court's conclusions of fact and law. Point 12 asserts that the refusal of the court to annul the marriage was fundamental error. At this point it is proper to say that a finding by the court to the effect that appellant had no grounds for divorce against appellee could only have been considered by the court in connection with the point of appellant's good faith in bringing this suit. It is not res adjudicata of the right of appellant to bring an action for divorce.

In addition to asserting errors of practice and procedure by the trial court, it is here appellant's position that, upon his having pled and proved that appellee was divorced on the grounds of cruelty from another man on April 1, 1946, and that she had married appellant within less than twelve months thereafter, taken together with his pleadings and proof that he brought this suit for annulment within a reasonable time after he learned that appellee had married him in violation of Art. 4640, he had the unqualified legal right to annulment.

Opinion.

It is the policy of the law to look with special favor upon marriage and to seek in all lawful ways to uphold this most important of social institutions. See 28 Tex.Jur. 732, et seq. "Accordingly in a proper case the presumption of death of a former spouse or a divorce from a former marriage will be applied to support the regularity of a marriage shown to have been consummated." Id. Again it is said in the valuable work quoted from, Vol. 28, page 731, "Even though the divorce statute (i. e., R.C.S. Art. 4640) declares that neither party to a decree granted upon the grounds of cruel treatment shall marry any other person for a period of twelve months next after the divorce is granted, a marriage contracted within such period is not void. The decree is final, and not interlocutory, * * *." "* * * Where, however, the marriage is induced by fraud, deception or duress, or entered into by one incapable legally * * * of assenting * * * the marriage is at most only voidable, and is a valid subsisting marriage for all purposes until annulled by a proper decree of a court. It is precisely the same situation as where legal grounds for a divorce exist. The marriage is valid until dissolved by decree." Id. Again, at page 725, the same text after stating that marriage contracts inducing and supporting a marriage may be rescinded upon equitable grounds further says "In all cases of this kind, however, the courts are quick to look for acts of waiver or condonation, as a strong public policy supervenes with respect to maintaining marriages."

Again, in the case of Nixon v. Wichita, etc., Co., 84 Tex. 408, 19 S.W. 560, 561, the Supreme Court quoted with approval language showing the strong public policy in favor of upholding the marriage relationship, as follows: "`Every intendment of law is in favor of matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the forms of the proofs, the law raises a presumption of its legality, not only casting the burden of...