Rey v. Rey, 6253

• Decision Date: 15 November 1972
• Docket Number: No. 6253,6253
• Citation: 487 S.W.2d 245
• Parties: Angelina Valles REY, Appellant, v. Paul REY, Jr., Appellee.
• Court: Texas Court of Appeals

Page 245

487 S.W.2d 245

Angelina Valles REY, Appellant, v. Paul REY, Jr., Appellee.

No. 6253.

Court of Civil Appeals of Texas El Paso.

Nov. 15, 1972.

Rehearing Denied Dec. 6, 1972.

Allen L. Poage, El Paso, for appellant.

Niland, Niland & Cooper, Herbert E. Cooper, El Paso, for appellee.

OPINION

RAMSEY, Chief Justice.

The opinion and judgment of this Court, dated the 5th day of July, 1972, is withdrawn and this opinion is substituted therefor.

This is a divorce case. Angelina Valles Rey,Petitioner-Appellant, filed suit for divorce from Paul Rey, Jr., Respondent-Appellee. Judgment was entered based on the jury's answer to one special issue. We reverse and remand with instructions.

Petitioner's original pleading alleged a marriage in December, 1957, and a separation on May 1, 1971. Respondent filed a plea to the jurisdiction alleging no valid marriage, and further alleging that the parties were divorced in 1963 and that he had married one Socorro Fong in Juarez, Mexico, on January 16, 1964. Petitioner filed an amended petition, alleging the divorce as plead by Respondent, and further alleging that the parties resumed their marital relationship by common law marriage commencing July 1, 1963, and living together continuously until June 1, 1971. Petitioner also replied to Respondent's plea to the jurisdiction alleging the resumption of the marriage relationship immediately after the divorce asserting that this constituted a valid common law marriage and that by reason thereof, no valid ceremonial marriage could have been consummated between Respondent and Socorro Fong. Petitioner prayed for a decree of divorce, custody of their minor child, and child support.

Petitioner has assigned seven points of error. We have carefully examined points numbered one, two, three, four, six and seven and have determined that under the condition of the record, these points must be overruled.

Point of error number five complains of the submission of Special Issue Number 1, which is as follows:

'Do you find from a preponderance of the evidence that Paul Rey, Jr. and Angelina Valles Rey were husband and wife between July 1, 1963, and January 15, 1964?'

Explanatory definitions were supplied by the Court to assist the jury. Petitioner's brief states that this issue was submitted by the Court over objection. This statement is not challenged by the Respondent. In reviewing the record, we are unable to find any objection made to the Court's charge. Requests were made and denied for other instructions, but no other issues were requested and no objections to the Court's charge appears. Thus, any error committed by the Court in submitting the issue was waived as provided in Rule 279, Texas Rules of Civil Procedure.

This issue has been held sufficient though not preferable. Mata v. Rangel et al., 432 S.W.2d 146 (Ref. n.r.e.); Moore v. Jordan et al., 328 S.W.2d 343 (Ref. n.r.e.). Shelton v. Belknap et al., 155 Tex. 37, 282 S.W.2d 682 (1955); and Whaley et vir v. Peat, 377 S.W.2d 855 (Ref. n.r.e.), support the submission of questions concerning the constituent elements of a common law marriage predicated upon the necessary facts to establish the legal relationship.

The jury, in answer to the issue submitted, found that during the period inquired about the parties were not husband and wife. One other issue was conditionally submitted but by reason of the answer to the first, the second was not answered.

The facts giving rise to the matters in controversy are important to note.

The parties were married in a ceremonial marriage in 1957. In June, 1963, the Petitioner obtained a divorce intending to move to California. En route, Respondent sent her a telegram asking her to return. At Tucson, she got off the train and returned to El Paso and resumed living with Respondent. Petitioner's version of their relationship was that they continued to live together as they had before. Respondent, in answer to a question as to whether or not they agreed to live together after the divorce, testified:

'There was no such agreement as such. We just took it for granted; We just got together.'

The gist of Respondent's testimony as to their relationship in the period of time between the divorce and January 15, 1964, was that they saw each other quite a bit though he denied a husband and wife relationship. He also testified that in the fall of 1963 he asked Petitioner to marry him but she refused.

During this time, Respondent became involved with a Miss Socorro Fong at his place of employment. According to his testimony, his relationship with her culminated in their ceremonial marriage in Juarez, Mexico, on January 16, 1964. He lived with her only a week or two when she left. Petitioner consistently denied that she knew of any marriage between Respondent and Miss Fong, and testified that even during this one or two week period Respondent referred to, she and Respondent continued to live together. Respondent testified to the contrary. Exhibits consisting of pictures, stationery and cards and testimony of neighbors and relatives were introduced, which are quite persuasive after the alleged Juarez marriage and until the time of this trial, indicating that the parties considered themselves husband and wife. In February, 1965, a child was born. Respondent acknowledges his paternity of the child and has assisted the Petitioner to some extent by contributing financial support....