Hudspeth v. Hudspeth

• Decision Date: 02 December 1946
• Docket Number: No. 5755.,5755.
• Citation: 198 S.W.2d 768
• Parties: HUDSPETH v. HUDSPETH.
• Court: Texas Court of Appeals

198 S.W.2d 768

HUDSPETH v. HUDSPETH.

No. 5755.

Court of Civil Appeals of Texas. Amarillo.

December 2, 1946.

Rehearing Denied January 6, 1947.

Appeal from District Court, Lubbock County; G. V. Pardue, Judge.

Suit by Elizabeth Hudspeth against Jack Hudspeth for annulment of a ceremonial marriage or, in the alternative, for a divorce, and for adjudication of property rights. From a judgment for plaintiff, annulling the marriage and adjudicating property rights, defendant appeals.

Reversed and remanded for a new trial.

Hinson & Ball, of Lubbock, for appellant.

Campbell & Adams, of Lubbock, for appellee.

BOYCE, Justice.

This suit was brought by appellee Elizabeth Hudspeth as plaintiff against appellant Jack Hudspeth as defendant for annulment of a ceremonial marriage (or in the alternative for a divorce), and for the adjudication of property rights. On a trial before the court without a jury, the marriage was annulled and certain property described as the Ritz Theatre in Lubbock and a 1942 Chevrolet automobile were decreed to be the property of the appellee. Discussion of two points of error, that the court erred in holding the marriage void, and in holding that the property involved in the suit was not community property, will dispose of this appeal.

The parties were united by a ceremonial marriage in 1938. The appellant Jack Hudspeth had been previously married to Bertie Lee Hudspeth. The trial judge found that the first wife was living at the time of the second marriage; that the former marriage had not been dissolved by divorce; that appellant had filed a divorce suit which had been dismissed for want of prosecution; that he and Bertie Lee Hudspeth had had their residences in Johnson County, Texas, for a considerable time, including the date of his marriage to appellee and that appellant, through the use of diligence at the time of the second marriage, could have ascertained his marital status by investigating the court records of Johnson County. On these findings, the trial judge concluded that the second marriage between Jack Hudspeth and the appellee, Elizabeth Hudspeth, was void.

The legal presumption is that the second marriage was valid; this presumption must prevail until rebutted by evidence which negatives the effective operation of every possible means by which a dissolution of the prior marriage could have taken place. Holman v. Holman, Tex.Com.App., 288 S.W. 413, 414; Nixon v. Wichita Land & Cattle Co., 84 Tex. 408, 19 S.W. 560, 561; Casualty Underwriters v. Flores, Tex. Civ.App., 125 S.W.2d 371, 375, writ of error dismissed, judgment correct; Skinner v. Vaughan, Tex.Civ.App., 150 S.W.2d 260, 265, writ of error dismissed, judgment correct. In line with these decisions is the holding that proof that there has been no divorce will not void the second marriage in the absence of proof that the former marriage has not been annulled. Lazarowicz v. Lazarowicz, 91 Misc. 116, 154 N.Y. S. 107, 109. The authorities cited also hold that the burden is on the person attacking the validity of the second marriage to prove that the first has not been dissolved. There was testimony that the first wife had procured a divorce, had remarried prior to the time of the marriage between the parties to this suit and that she had lived in various places other than Johnson County between the time of her separation from the appellant and the time of his marriage to appellee. We do not pass upon the competency of this evidence since the trial judge appears not to have believed it. Appellant and Bertie Lee Hudspeth were married in September, 1928, and lived together for about two months. In January, 1934, appellant filed a petition for divorce from Bertie Lee Hudspeth on the ground of desertion. In May, 1934, Bertie Lee Hudspeth filed an answer consisting of a general demurrer and a general denial. The suit was dismissed for want of prosecution in 1937. Appellant was a migratory worker and was absent from Johnson County for long periods of time in his employment at various places, one of which was as far away as South America. In our opinion, the case of Holman v. Holman, supra, is in point on the facts and controlling. In that case, the wife testified that she had never obtained a divorce from her first husband and that she had never been served with a citation in a divorce suit brought by him. It was held that this testimony was insufficient to negative a divorce obtained by the first husband on a citation by publication and that the second marriage was valid. It is not shown in this case that Bertie Lee Hudspeth never obtained a divorce from the appellant. Her answer in the suit filed by him does not dispose of the possibility that she had previously or that she subsequently secured a divorce. If she had previously obtained a divorce, such divorce was a defense to the suit brought by appellant which could have been urged had the suit been tried. Furthermore, the facts in this case suggest that grounds for annulment of the marriage between Jack Hudspeth and Bertie Lee Hudspeth existed in that he was nineteen years of age and she was sixteen when they married. The evidence fails to show that their marriage was not annulled. We conclude, therefore, that the evidence was insufficient to support the trial court's holding that the marriage between appellant and appellee is void.

In view of another trial, in which it may develop that a divorce should be granted we shall discuss the status of the Ritz Theatre and the Chevrolet automobile with respect to whether they are community property or the separate property of the appellee. Both were conveyed to her without specification that they were her separate property. At the time of the marriage of the parties to this suit, each owned some property, that belonging to appellee greatly exceeding in value that owned by appellant. Among the properties owned by appellee was an undivided one-half interest in a hotel in Odessa, Texas. Subsequent to the marriage, the one-half interest of the other owner, Ada Yates, was purchased with money borrowed from J. E. Parker. To evidence this loan, a note was executed by the appellant and the appellee and it was presumably a community obligation. It was paid with funds...