Rosetta v. Rosetta

Decision Date10 July 1975
Docket NumberNo. 831,831
Citation525 S.W.2d 255
PartiesJanice Carolyn ROSETTA, Appellant, v. Peter Franklin ROSETTA, Appellee.
CourtTexas Court of Appeals

Bader, Wilson, Menaker, Cox & Branson, Bertran T. Bader, III, Horsley & Wincorn, Gregory C. Horsley, Dallas, for appellant.

Anderson, Henley, Shields Bradford & Pritchard, W. A. Pritchard, Dallas, for appellee.

McKAY, Justice.

Peter Franklin Rosetta, appellee, brought this suit for divorce from Janice Carolyn Rosetta, appellant Alleging they had a common law marriage as of July 1, 1970, and asking that he be granted a divorce and be appointed managing conservator of their minor child, Theresa Angelique Rosetta (hereinafter called Angie). The trial court heard the case without a jury, and on July 17, 1974, rendered judgment that the parties had a common law marriage, that appellee be granted a divorce, and that appellant be appointed managing conservator of the minor child with appellee granted specific visitation rights.

On July 23, 1974, appellee filed what is titled 'Petitioner's Motion for New Trial, Contempt, Etc.,' in which he alleged that 'prior to and since the trial' appellant caused Angie to be emotionally disturbed, endeavored to alienate Angie's affection for her father and that since trial appellant had totally refused to permit visitation as the Court had ordered. Appellee asked the court to grant him a new trial to the extent that the court appoint him managing conservator of Angie, and alternatively requested that appellant be held in contempt for moving or threatening to move without advising appellee of her new address. The prayer on the motion was 'Wherefore, Petitioner prays that upon hearing that the Court award him all of he relief above requested, all costs herein and such other and further relief to which he may be entitled.'

The court set the motion for hearing on August 9, 1974, but the record does not reveal that there was any hearing. However, on the setting day, August 9, 1974, the trial court set aside its judgment of July 17, 1974, and rendered a new judgment granting a divorce to appellee and appointing him managing conservator of the minor child, Angie, with an order for appellant to immediately deliver Angie to appellee, and setting out specific visitation rights to appellant. It is from this second judgment that appellant brings this appeal.

Appellant filed a motion to set aside the judgment, and later a Motion for New Trial, both of which were overruled. Findings of fact and conclusions of law were requested and filed by the trial court.

We are met at the outset with a motion by appellee to dismiss the appeal based upon finding numbered 19 and 20 made by the trial court, and also upon an affidavit made by appellee. We overrule the Motion to Dismiss.

Findings Nos. 19 and 20 are as follows:

'19. Since the date of the Judgment herein on August 9, 1974, Respondent's attorney had advised the court that Respondent took the minor child to Paducah, Kentucky, and left her with her mother, where the Court understands said child is at this date.

'20. As of this date, Respondent has completely ignored the terms of this Court's judgment concerning delivery of the minor child to Petitioner and has refused to allow Petitioner to visit with her.'

Appellee argues that since findings 19 and 20 of the trial court are not challenged on any point on appeal, they are binding upon the parties and must be accepted by the Court of Civil Appeals citing Curtis v. National Cash Register Co., 429 S.W.2d 909 (Tex.Civ.App.--Amarillo, 1968, writ ref'd, n.r.e.) and cases there cited. We do not disagree with this rule; however, the two findings upon which appellee relies are obviously not based upon evidence presented during the trial of the case, but they are, as so found and stated by the trial court, based upon information presented to he judge by one of the attorneys after the trial. Under such circumstances we are not bound by the rule stated in Curtis. Findings of facts which occurred after the case was heard by the trial court, and which are not supported by the record, are not binding upon this court even though unchallenged. We are without jurisdiction to determine or pass upon questions or irregularities which may have occurred subsequent to the judgment appealed from and not shown in the record. Brown County Life Ins. Co. v. Hagins, 110 S.W.2d 1162 (Tex.Civ.App.--Amarillo, 1937, no writ). Moreover, these findings have nothing to do with the power of this court to ascertain the status of its jurisdiction of the case. Ragland v. Cone, 118 S.W.2d 1098 (Tex.Civ.App.--Amarillo, 1938, no writ).

Appellee attached to his Motion to Dismiss his own affidavit concerning the acts of appellant after the judgment appealed from was rendered. The only matters which we are authorized to consider upon affidavits are those which involve the exercise of our jurisdiction. Art. 1822, Vernon's Ann.R.Civ.St., Brown County Life Ins. Co. v. Hagins, supra. Appellee's affidavit does not concern our jurisdiction and is therefore not considered.

In appellant's first two points complaint is made that the trial court erred in finding there was a common law marriage because there is no evidence, or insufficient evidence, (1) that there was a contract between the parties to be married, and (2) that the parties held themselves out or represented to others that they were husband and wife.

In passing upon a no evidence point we must consider only the evidence and the inferences therefrom tending to support the findings of the trier of the facts and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

When it is contended that the evidence is insufficient to support a fact finding a court of civil appeals must examine all of the evidence and reverse and remand for a new trial if it concludes that the evidence is factually insufficient to support the findings of a vital fact. Calvert, 'No Evidence' and 'Insufficient Evidence' Points of Error, 38 Tex.L.R. 361, 366 (1960).

Appellant and appellee were married in a ceremonial marriage in Paducah, Kentucky, on December 27, 1965. Angie Rosetta, the minor child, was born to the parties on April 15, 1967. Appellant and appellee were divorced by judgment of Domestic Relations Court No. 3, Dallas County, on November 21, 1969, and appellant was awarded the house in which they had lived and custody of the minor child.

Appellee testified that he and appellant began to live together again about July 1, 1970, in the house formerly occupied by them. He further testified that they lived together there approximately three years, that they agreed to resume living together as man and wife, and that they slept in the same bed . He said 'We just agreed to move back together and resume the relationship.' He also testified during this period he introduced appellant as his wife and she introduced him as her husband. They separated May 15, 1973, by appellee leaving the house. On August 11, 1973, appellant was ceremonially married to Jim Woods.

Appellee testified that during the time they lived together they continued to use a joint bank account used before the divorce by each of them writing checks on it; that appellant paid most of the bills and that she filled out their income tax returns for $1970, 1971, 1972 and 1973, but they were not joint returns, but separate individual returns. He further said that he was not aware that their conduct constituted a common law marriage until his lawyer told him, and that he and appellant talked about remarriage a few times to the effect that they would remarry sometime in the future. These questions and answers appear in the record:

'Q. Okay. But, you did talk about sometime in the future remarrying, isn't that right?

A. Yes.

Q. Didn't have any agreement between you in July of 1970 to be man and wife, did you?

A. Well, I considered myself to still be married to her.'

Appellee later testified:

'Q. Didn't you all have an agreement, one time, when you got ready to move back in the house that you asked her for a trial living together so that you might marry sometime if it worked out?

A. Back when we first, just before, we moved in together, we discussed the possibility of a trial situation between the two of us .

Q. So to see if some day you might marry in the future, isn't that right?

A. Yes, go through a ceremony.

Q. Did you not tell me on--during cross-examination two days ago that you entered this household under an agreement to marry in the future? Isn't that what you told me, right there?

A. I said that we might have an agreement to marry in the future.

Q. That's right. An agreement to marry in the future and I asked you specifically that and you said, yes, that is right. Then, just a few minutes ago, you told me that you agreed to be married when you entered into the house.

A. As far as I was concerned, we were still married.

Q. That's the point. Isn't it a fact you always throught you were still married, isn't that right?

A. That is right.

Q. If you didn't consider yourself divorced, why would you enter into an agreement to marry?

A. Just for the ceremony.

Q. But, you had no intent to presently be husband and wife? You were going to marry in the future, isn't that right?

A. We had intent to be husband and wife.

Q. Then, why would you make an agreement to marry in the future?

A. She said we might.

Q. Might marry in the future, right?

A. Yes.

Q. Okay, you also agreed to be married in the future, ceremonial, is that correct?

A. I didn't agree to it.

Q. But, that was Janice's condition, wasn't it?

A. Not a condition, no.

Q. What was it, then?

A. It was a maybe.

Q. A maybe you would marry in the future?

A. Yes.

Q. With reference to this business about marrying in the future, explain what that term meant? I mean, what were you talking about?

A. Marrying in the future?

Q. This--let's get our time frame right....

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