Joseph L. Salone v. Diana Lee Olague

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00137-CV Joseph L. Salone, Appellant v. Diana Lee Olague, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. 96-11579, HONORABLE PETER M. LOWRY, JUDGE PRESIDING Joseph Salone appeals from a decree and qualified domestic-relations orders rendered in a divorce action brought by Diana Olague. We will affirm the decree and orders. THE CONTROVERSY Diana and Joseph began living together in 1976. Diana filed for divorce on September 25, 1996. In response to her petition, Joseph raised the defense that his common-law marriage to Diana could not begin in 1976 because he was married to another woman, Dorothy Salone, from January 7, 1975, until a decree of divorce was rendered on April 10, 1995. Therefore, he contended, the period of his marriage to Diana began "on or about April 10, 1995, and any division of community property should be based on property acquired or accrued after that date." See Tex. Fam. Code Ann. § 6.202 (West 1998). At the conclusion of the divorce hearing involving Joseph and Diana, the trial court ordered the marriage dissolved on the ground of insupportability and cruelty and divided the parties' community property and joint obligations in a manner favoring Diana. The trial court declared in its decree that a common-law marriage between Joseph and Diana had existed since January 1, 1976. The trial court entered findings of fact and conclusions of law. In his appeal, Joseph raises five points of error. The crux of his argument is that the trial court's finding that there was no previous, valid, undissolved marriage of Joseph Salone was against the great weight and preponderance of the evidence. DISCUSSION AND HOLDINGS Section 1.102 of the Texas Family Code provides that "[w]hen two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage." Tex. Fam. Code Ann. § 1.102 (West 1998). See Estate of Claveria v. Claveria, 615 S.W.2d 164, 165-66 (Tex. 1981); Davis v. Davis, 521 S.W.2d 603, 605 (Tex. 1975). This presumption is "one of the strongest known to the law." Wood v. Paulus, 524 S.W.2d 749, 758 (Tex. Civ. App.--Corpus Christi 1975, writ ref'd n.r.e.). As the party asserting the validity of a previous marriage, Joseph had the burden of proof to establish (1) the previous marriage and (2) its continuing validity at the time of the subsequent marriage. See Loera v. Loera, 815 S.W.2d 910, 911 (Tex. App.--Corpus Christi 1991, no writ); Davis, 521 S.W.2d at 605. To discharge his burden, Joseph had to introduce sufficient evidence which, standing alone, negated the dissolution of the previous marriage. See Medrano v. State, 701 S.W.2d 337, 341 (Tex. App.--El Paso 1985, writ ref'd); Wood, 524 S.W.2d at 758; Schacht v. Schacht, 435 S.W.2d 197, 201 (Tex. Civ. App.--Dallas 1968, no writ). In this case, negating the dissolution of the previous marriage meant introducing evidence to establish that a previous marriage had existed from January 1975 until April 1995. Joseph contends that his cross-examination of Diana provided the court with a reasonable basis for inferring that he had married another woman before he began living with Diana. Joseph, a pro se litigant, contends that he "testified" concerning his possession at trial of the marriage license from his alleged previous marriage. Although Joseph represented himself, he was obliged to comply with all applicable procedural rules. See Lin v. Houston Community College Sys., 948 S.W.2d 328, 336 (Tex. App.--Amarillo 1997, writ denied); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978). Joseph did not offer in evidence a marriage license or a divorce decree from the previous marriage he alleged. While these two documents were attached to an affidavit that accompanied Joseph's pleadings and motion for new trial, the documents were not admitted at trial and cannot be considered proof in this case. See State Bar of Tex. v. Grossenbacher, 781 S.W.2d 736, 738 (Tex. App.--San Antonio 1989, no writ); American Fire & Indem. Co. v. Jones, 828 S.W.2d 767, 769 (Tex. App.--Texarkana 1992, writ denied). Moreover, Joseph's purported "testimony" concerning the marriage license was part of closing argument and is not evidence. Tex. R. Evid. 603; see Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 71 (Tex. App.--Austin 1990, no writ). The only evidence offered to rebut the presumption of the validity of the more recent marriage consisted of Diana's answers to Joseph's questions during cross-examination. Her responses were vague and subject to many interpretations. Standing alone, her responses fail to establish either the existence of a previous marriage or its continuing validity at the time of the subsequent marriage. See Medrano, 701 S.W.2d at 341; Wood, 524 S.W.2d at 758; Schacht, 435 S.W.2d at 201. Because Joseph failed to meet his burden of establishing the previous marriage and its continuing validity at the time of the subsequent marriage, we overrule his first point of error. Joseph's four remaining points of error depend upon a resolution of the first point of error in his favor. Accordingly, we overrule the remaining points of error and affirm the decree and orders of the trial court. John Powers, Justice Before Chief Justice Aboussie, Justices Powers and Kidd Affirmed Filed: December 17, 1998 Do Not Publish gular">DISCUSSION AND HOLDINGS Section 1.102 of the Texas Family Code provides that "[w]hen two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage." Tex. Fam. Code Ann. § 1.102 (West 1998). See Estate of Claveria v. Claveria, 615 S.W.2d 164, 165-66 (Tex. 1981); Davis v. Davis, 521 S.W.2d 603, 605 (Tex. 1975). This presumption is "one of the strongest known to the law." Wood v. Paulus, 524 S.W.2d 749, 758 (Tex. Civ. App.--Corpus Christi 1975, writ ref'd n.r.e.). As the party asserting the validity of a previous marriage, Joseph had the burden of proof to establish (1) the previous marriage and (2) its continuing validity at the time of the subsequent marriage. See Loera v. Loera, 815 S.W.2d 910, 911 (Tex. App.--Corpus Christi 1991, no writ); Davis, 521 S.W.2d at 605. To discharge his burden, Joseph had to introduce sufficient evidence which, standing alone, negated the dissolution of the previous marriage. See Medrano v. State, 701 S.W.2d 337, 341 (Tex. App.--El Paso 1985, writ ref'd); Wood, 524 S.W.2d at 758; Schacht v. Schacht, 435 S.W.2d 197, 201 (Tex. Civ. App.--Dallas 1968, no writ). In this case, negating the dissolution of the previous marriage meant introducing evidence to establish that a previous marriage had existed from