Nguyen v. Nguyen

• Decision Date: 24 February 2011
• Docket Number: No. 01–09–00421–CV.,01–09–00421–CV.
• Citation: 355 S.W.3d 82
• Parties: Lan Ngoc NGUYEN, Appellant, v. Dinh Duc NGUYEN, Appellee.
• Court: Texas Court of Appeals

355 S.W.3d 82

Lan Ngoc NGUYEN, Appellant,

v.Dinh Duc NGUYEN, Appellee.

No. 01–09–00421–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Feb. 24, 2011.Rehearing and Rehearing En Banc

Overruled June 1, 2011.

Trang (Duncan) Thien Pham, Houston, TX, for Appellant.

Jay Robert Brandon, San Antonio, TX, for Appellee.

Panel consists of Justices KEYES, HIGLEY, and BLAND.

OPINION

EVELYN V. KEYES, Justice.

Appellant, Lan Ngoc Nguyen (“Lan”), sued Dinh Due Nguyen (“Dinh”) for divorce. After answering and filing a counter-petition for divorce, in which he admitted that he was married to Lan, Dinh moved for declaratory judgment pursuant to the Texas Uniform Declaratory Judgments Act (“UDJA”), seeking a declaration that he never married Lan because he had married Pham Kim Nguyet (“Pham”) in Vietnam approximately eight months before the alleged ceremony to Lan. After a bench trial, the trial court ruled that Lan and Dinh had never married. In two issues on appeal, Lan contends that Dinh did not present legally and factually sufficient evidence to support the trial court's finding of fact that Lan and Dinh had never informally married “due to the impediment of [Dinh's] prior marriage.”

We reverse and remand.

Background

Lan met Dinh in 1995 when she started working in his chiropractic clinic, and they eventually began dating. Dinh traveled to Vietnam in February 2000, where he allegedly married Pham on February 18. Although Dinh returned to the United States shortly thereafter and Pham remained in Vietnam, Dinh testified that he and Pham never divorced and he “[s]trongly consider[ed]” Pham to be his wife.

Lan testified that after Dinh returned from Vietnam, he told her that he had become engaged to Pham, but he had called off the marriage to Pham because he wanted to marry Lan. The trial court admitted a picture taken at the February 2000 ceremony in Vietnam of Dinh and Pham standing under a banner that read “Dinh Hom.” Lan testified that, in Vietnamese, “Dinh Hom” means “engagement.”

According to Lan, Dinh proposed to her a few months after he returned. Lan testified that she and Dinh had a traditional Vietnamese wedding ceremony on October 7, 2000. Dinh disputed the characterization of the ceremony as a “wedding,” although he admitted that Lan sent invitations for a “wedding ceremony,” that they dressed formally, that they exchanged rings, that they had a wedding cake, and that they danced together at this ceremony.¹ Lan stated that a Vietnamese “Master of Ceremonies” officiated and announced that Lan and Dinh were married.² Lan testified that, after the ceremony, she believed that she and Dinh were married and that Dinh often introduced her to others as his wife. Dinh stated that he had “occasionally” told others that Lan was his wife, but he then immediately testified to the contrary and stated that he had never introduced Lan as his wife. Although Lan and Dinh filled out an application for a marriage license, in which Dinh stated that he was not married to another, it is undisputed that the Harris County Clerk's Office never issued a marriage license to the couple.

Lan testified that she moved in with Dinh, and they lived together as husband and wife. Dinh named Lan as his spouse on an insurance application, and she named “[her] husband” as her life insurance beneficiary. On cross-examination, Lan agreed that she had listed her marital status as “single” on her federal income tax forms and on loan applications to purchase a home and a car, but she stated that Dinh had told her to write that she was single on these forms.

Lan and Dinh lived together until 2003, when they separated for approximately two years. Lan testified that they reconciled in 2005 and that they lived together until December 2007, when Dinh kicked Lan out of their house. Lan filed for divorce on December 10, 2007.

Dinh answered Lan's petition, asserting a general denial and the affirmative defenses of fraud and release. Dinh also filed a counter-petition for divorce, in which he stated that “[t]he parties were married on or about November 1, 2005 and ceased to live together as husband and wife on or about December 8, 2007.” Dinh attached a copy of a premarital agreement, executed by himself and Lan on September 12, 2000, which stated that “[t]he parties plan to marry each other, and intend to provide in this agreement for their property and other rights that may arise because of their contemplated marriage.” Both Lan and Dinh initialed each page and signed the document.

Dinh later amended his answer and once again generally denied Lan's allegations. Dinh also “denie[d] that the parties were ever married, either ceremonially or through the application of common law, and [he] affirmatively assert[ed] that [Lan] is attempting to perpetrate a fraud upon this court with allegations that the parties are man and wife.” Dinh further amended his counter-petition to state that the parties had never married.

Dinh simultaneously moved for a declaratory judgment under the UDJA, seeking a declaration that no marriage existed between Lan and him. Dinh denied the existence of a marriage, and argued that Lan could not prove the elements of either a valid ceremonial or a valid informal marriage. Dinh did not contend in this motion that he could not have validly married Lan because he had previously married Pham and that marriage continued in existence.

At the bench trial on Dinh's declaratory judgment motion, the trial court heard evidence regarding whether a marriage existed between Dinh and Pham. Dinh testified that he and Pham participated in a formal wedding ceremony in Saigon, Vietnam on February 18, 2000. According to Dinh, he and Pham never divorced and he still considered himself married to her, even though she lives in Vietnam and Dinh lives in Houston. Dinh stated that he and Pham had a wedding ceremony in Vietnam, and not merely an engagement party, as Lan contended. On cross-examination, Dinh testified inconsistently regarding (1) whether he and Pham obtained a marriage license in Vietnam and (2) whether a marriage license was even necessary in Vietnam. Dinh first stated that he did not obtain a marriage license in Vietnam, but then he disagreed with Lan's counsel and twice stated that he and Pham had obtained a marriage license. Dinh then testified that it was not necessary to obtain a marriage license to be legally married in Vietnam. Dinh did not present to the trial court a marriage license, or the Vietnamese equivalent, demonstrating his marriage to Pham.

The trial court admitted into evidence an “Application for Certification,” applied for by Pham on June 24, 2008, and certified by Luong Thi Dung, the “Chief of Town Section No. 3,” which reflected that Pham's family performed a wedding ceremony between Dinh and Pham on February 18, 2000. In doing so, the trial court stated, “This is offered only as to the date of a marriage, not to prove the marriage. It does not prove the marriage. And I'm not admitting it to prove a marriage.” The trial court also admitted an affidavit from Dung, stating that she made the certification to help Pham's older sister. Dung averred, “I trust in [Pham's] family and I made the certification according to the request of [Pham's sister] to help her. Actually, I did not know who was the groom in the wedding ceremony mentioned above.”

Pham testified by deposition. She stated that she married Dinh on February 18, 2000, that she has “not yet” divorced him, and that she still considered him to be her husband. Lan presented further deposition testimony, during which Pham was evasive and refused to answer questions from Lan's counsel regarding her alleged 2002 marriage to an Australian man.

The trial court ruled that Lan and Dinh “were never married and thus, a marriage never existed between the two.” Upon request by Lan, the trial court issued findings of fact and conclusions of law. The trial court issued the following findings:

(1) The court finds that [Lan] and [Dinh] were never formally married and thus, a marriage never existed between the two.

(2) The court further finds that [Lan] and [Dinh] were never informally married due to the impediment of [Dinh's] prior marriage and thus, a marriage never existed between the two.

The court concluded that “[a] marriage never existed, either formally or informally, between [Lan] and [Dinh].”

Lan moved for a new trial, contending that she had obtained “newly discovered evidence” that Dinh and Pham never married. Lan attached affidavits from attorneys familiar with Vietnamese marriage law and argued that common-law marriage does not exist in Vietnam and that Dinh and Pham did not follow the appropriate procedures for formally registering and recognizing their alleged marriage. Lan also presented evidence of a Vietnamese marriage certificate between Pham and Howard Wilde, an Australian, registered in Ho Chi Minh City on May 27, 2002. Lan further argued that the putative spouse doctrine applied and entitled her to a division of the assets obtained during her relationship with Dinh. Lan requested that the trial court rescind its final judgment and allow a trial on the putative spouse issue.

The trial court denied Lan's motion for new trial and this appeal followed.

Appellate Jurisdiction

Although Dinh contends that we have jurisdiction over this appeal, he mentions that this may be “an unauthorized interlocutory appeal,” because the trial court's judgment is entitled “Final Judgment” with the handwritten addendum “(AS TO MARRIAGE)” and it includes a sentence stating that “[t]he issue of the existence of a marriage was bifurcated and tried separate and apart from all other issues, by agreement of the parties.” We briefly address this issue.

The general rule is that, absent mostly statutory exceptions, an appeal may only be taken from a final judgment. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.2001). A judgment is final for the purposes of appeal if it “disposes of...