Rosales v. Rosales, 2
| Decision Date | 19 March 1964 |
| Docket Number | No. 2,2 |
| Citation | 377 S.W.2d 661 |
| Parties | Pablo ROSALES, Appellant, v. Josefina Aguilar ROSALES alias Ofelia Garza Rosales, Appellee. |
| Court | Texas Court of Appeals |
Ramiro B. Martinez of Rankin, Kern, Martinez & de la Garza, McAllen, for appellant.
R. A. Vidaurri, Edinburg, Alfonso A. Guerra, McAllen, for appellee.
Appellee Josefina Aguilar Rosales brought a suit for divorce against appellant Pablo Rosales, alleging that a common-law marriage was solemnized by the mutual agreement to be man and wife, followed by cohabitation and the holding out to the public that they were each other's respective spouses. The trial court, in a judgment granting the appellee a divorce from appellant, expressly found in its judgment and decree that a common-law marriage existed, decreed a division of the community property, and ordered the appellant to pay the attorney fees of the appellee.
The trial of the case was before the court without the intervention of a jury. The appellant in appealing from the judgment of the trial court, attacks the holding of a common-law marriage, in four points of error; three points to the effect that the appellee wife admitted that she never made any agreement to marry the defendant husband, and that this was a judicial admission, and further that she was living with him so that she could use his name.
It is our opinion that these points should be overruled.
There were no formal, separately stated, findings of fact or conclusions of law requested or filed. It is the duty of the Court of Civil Appeals upon appeal from judgment of the trial court to uphold such judgment provided that the implied findings which the judgment carries with it are supported by the evidence. In order to warrant a reversal in a non jury case where the record contains a statement of facts but no findings of fact or conclusions of law, as in this case, the appellant must show from the record that under no theory to be gathered therefrom was the court authorized to render the judgment, and the judgment will be affirmed if the statement of facts supports it on any theory of the case. 3 Tex.Jur.2d, Appeal and Error-Civil, 689, Sec. 438.
The appellee plead the necessary elements requisits to a common-law marriage and the statutory requirements for a divorce. There is no complaint concerning the proof of the divorce. In order to constitute a valid common-law marriage, it must be established that the parties: (1) entered into an expressed or implied agreement to become husband and wife; (2) that such agreement was followed by cohabitation as man and wife; (3) that they held each other out professedly and publicly as husband and wife. Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, L.R.A.1915E (Sup.Ct.1913); Cain v. Caine, 314 S.W.2d 137 (Tex.Civ.App.1958).
The record reflects and there is evidence that the parties assumed the marriage status and lived together for some nine years beginning in 1953. The husband had three children of a previous marriage. This prior marriage terminated on the death of his first wife before he began cohabitating with the appellee. She had an illegitimate child but had never married prior to the cohabitation with the appellant. The parties, therefore, had no legal impediment and had the capacity to contract the present marriage. Although there were no children as issue of this marriage, the wife testified that she raised his three children and her child together in the same house. She testified that they agreed to live together as husband and wife and shortly thereafter purchased two lots and built a four-room house where she, the appellant and all of the children lived.
The wife was a Mexican citizen and testified through the aid and use of a court interpreter. The appellant urges this court to reverse the holding of the trial court because the wife judicially admitted on cross-examination that there was 'no agreement' to be married and that she was using the husband's name of 'Rosales' as a 'convenience' to her. A careful review of the testimony convinces us that these answers and admissions were imparted by the wife in...
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