Webb v. Webb, 14915
| Decision Date | 18 November 1970 |
| Docket Number | No. 14915,14915 |
| Citation | 461 S.W.2d 204 |
| Parties | Harry K. WEBB, Appellant, v. Danielle WEBB, Appellee. |
| Court | Texas Court of Appeals |
James R. Warncke, San Antonio, for appellant.
Victor A. Speert, San Antonio, for appellee.
Harry K. Webb, Jr., appeals from an instructed verdict decreeing that a Mexican divorce granted between appellant and appellee is void and invalid; that a marriage thereafter entered into by appellant is also void and invalid; and that appellant and appellee are husband and wife. In its judgment, the court found that as a matter of law, the requirements of the Mexican divorce had not been complied with, and that the evidence raised no issue of fact to be submitted to the jury. By three points of error appellant asserts: (1) The trial court erred in taking the case from the jury and directing judgment in favor of plaintiff for the reason that there was sufficient evidence to raise a fact issue for the jury. (2) The trial court erred in holding that as a matter of law the plaintiff was entitled to judgment. (3) The trial court erred in holding that there was no evidence upon which to submit this case to a jury. No brief was filed by appellee.
Since this is an instructed verdict case, we are guided by certain established rules in our review of the same. It is error to instruct a verdict where the evidence raises a material issue; and in passing upon the question of the authority of the trial court to instruct the verdict, the evidence must be considered most favorably on behalf of the party against whom the verdict is instructed. A preemptory instruction is warranted only when the evidence is such that no other verdict should be rendered. If there is any conflictig evidence in the record of probative nature, a determination of the issue is for the jury. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (Tex.1952); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); 56 Tex.Jur.2d, Trial, Sec. 207.
While it is appellant's contention that the Mexican divorce was valid, the main thrust of appellant's contention on this appeal is that appellee consented to and participated in the obtaining of the Mexican divorce, and is estopped from challenging the validitly thereof. 1 Appellant relies on Dunn v. Tiernan, 284 S.W.2d 754 (Tex.Civ.App.--El Paso 1955, writ ref'd n.r.e.), where it was held that one who has instituted and participated in an action for a Mexican divorce, will not be allowed to challenge the validity of the divorce.
The testimony is conflicting with regard to what part appellee played in connection with the Mexican divorce. Appellant testified that it was agreed upon between him and his wife that they would get a Mexican divorce, and that his wife signed a waiver in connection therewith. This testimony was corroborated in part by a disinterested witness, who testified that in 1968, appellant asked him to go with him to a notary public to witness the signing of a divorce paper; that he, appellant and appellee went to a notary public's office, where appellant stated that the papers were the Mexican divorce papers; that he saw appellee sign such papers, and that they were notarized. Appellee categorically denied that she participated in or consented to the Mexican divorce.
The Mexican divorce decree which was introduced into evidence recites that it is a voluntary divorce filed by appellant and appellee. If this statement is true, appellee was one of the movants in the case who urged the Mexican court to grant the divorce .
No effort was made in the trial court to prove the provisions of the laws of Mexico relative to divorce actions, and in the absence thereof, we must presume that the foreign law is the same as that of this state. 2 Gill...
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Weston v. Jones, 20958.
...Republic decree but merely held that the husband was estopped from challenging its validity. Id. at 48. [¶ 9.] In Webb v. Webb, 461 S.W.2d 204 (Tex.Civ.App.1970), a husband and wife obtained a divorce in Mexico. After the husband remarried, his ex-wife complained to the Texas court that Mex......
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Bruneau v. Bruneau, 3351
...to take advantage of a fraud in which she participated by being one of the parties to the Mexican proceeding. 3 See Webb v. Webb, 461 S.W.2d 204, 206 (Tex.Civ.App.1970); see also Smith v. United States, 277 F.Supp. 583, 589-90 (M.D.Fla.1967). We note that the result we have reached does not......
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Scherer v. Scherer
...in obtaining a foreign decree may be evidence of consent, and may thus prevent a party from attacking the decree. In Webb v. Webb, (1970) Tex.Civ.App., 461 S.W.2d 204, a recitation in the Mexican decree that both parties filed and the court had jurisdiction to grant it raised the issue that......