Janelli v. Janelli

BOND, Chief Justice. This is an appeal from an interlocutory order of a District Court of Dallas County, in limine, temporarily restraining the defendant “from selling or disposing of or encumbering any of his real or personal property wherever located” pending a suit brought by plaintiff against the defendant; and, incidentally,- for the defendant to file inventory of his property on or before the date mentioned in the order. The injunc-tive writ was directed to be issued upon plaintiff’s executing a temporary injunction bond in the sum of $1,000 in terms of *589 law, payable to the defendant. The defendant excepted to the judgment and gave notice of appeal; whereupon the trial court fixed amount of supersedeas bond at $5,000 which was duly posted, thus perfecting the appeal to this Court. The defendant predicates his appeal upon two points of error germane to appropriate assignments of error: (1) Where plaintiff can show no marriage to defendant, she does not, in suing him for a divorce, have the right to require him to file an inventory of his property; and (2) the burden of proof is upon the party seeking a temporary injunction, and where the plaintiff is unable to show a marriage existing between herself and the defendant, she is not entitled to an order enjoining defendant from his free use, management and disposition of his property. It will be seen that the controlling issue presented in both points of error is that there was no marriage existing between the plaintiff and defendant; hence on that controlling feature; hinges a determination of plaintiff’s right to the interlocutory orders presented in this appeal. Manifestly, if there was no marriage, there can be no divorce; hence suit is a nullity. The validity or existence of the marriage relation is obviously the substructure upon which a divorce action depends. It is jurisdictional. In divorce suits, as well as all interlocutory orders made in relation thereto, where the existence of marriage is the basis of the action, plaintiff must prove as well as plead the existence of such marriage. And in the absence of such pleadings or proof the plaintiff is not entitled to maintain the suit; nor the trial court make orders incident thereto. “A marriage is a mutual agreement of a man and woman to live together in the relation and Under the duties of husband and wife, * * Lewis v. Ames, 44 Tex. 319, per Roberts, C. J. The relation growing out of putative marriage is not that of husband and wife; there must have been an actual contracting or agreement for the marriage and a consummation of the marriage by statutory formalities, or by common-law union. Marriage differs from concubinage in that the intent in the former is to agree to assume the relation of husband and wife, whereas the intent in the latter is to assume no su'ch relationship. Marriages, as well as divorces, being of vital public interest, the law fixes and regulates marital relation on public consideration, justifying proof of such relation to be clear, unambiguous and satisfactory, before a judicial tribunal shall decree such relationship and deprive one of his personal property rights. Plaintiff’s suit is merely in form of divorce, alleging that “she and the defendant were lawfully married to each other on the 6th day of November, 1939, in Dallas County, Texas.” The defendant in reply alleges that “Ella Pennington, who in this suit styles herself Ella Janelli, was never married to him and that no marriage relation exists or has ever existed between them.” Thus the issu'e joined; and, the burden being on the plaintiff to prove the marriage, before any order may be made in reference thereto, we conclude that the plaintiff has wholly failed to meet the burden; that the evidence here presented conclusively shows that the parties were never married or held themselves out as husband and wife. It is not clear from plaintiff’s pleadings whether she relies upon ceremonial marriage or a common-law marriage; but in either event the evidence of such is wholly lacking for the court to proceed upon a valid marriage existence to create rights and liabilities in reference thereto. The only testimony in support of plaintiff’s allegation is that of plaintiff herself, who testified that she and defendant were married on Sunday morning, November 6, 1939, at Eleven o’clock, in the defendant’s room at his home, by a Reverend Smith whom she did not know, or had ever seen; she did not know the preacher’s initials, his religious sect or the church of which he was pastor. She stated that on that occasion, the defendant had already secured a marriage license, Unbeknown to her; she didn’t know when or where it was issued nor whether the preacher returned it to any county clerk’s office for recordation; she had never made • inquiry at the county clerk’s office of Dallas County, in which county both she and defendant had lived the greater portion of *590 their lives, to ascertain whether or not such marriage license had been issued or recorded. . S'he further testified that no one witnessed the marriage ceremony other than herself, the defendant and the preacher; she did not tell her family she was going to marry; she did not know it herself until they got near the defendant’s home on the occasion mentioned; that they stayed a little while at the house after the ceremony and then went out driving; that she and defendant never lived together, — she lived at 3409 Osbum Street and the defendant lived at 1413 Pennsylvania Street in the City of Dallas; that after his mother died (1943) he moved into another house he owned and lived with a widow and two children at another location on Peabody Street; that during all this time she was living with “a bunch” of her nieces and nephews and her own children by her first marriage (to a Mr. Pennington) ; that defendant never stayed at her home and she never stayed at his home, except one time when the widow at his home went ou't to West Texas. She further testified that during all this time the defendant had been going and keeping company with other women. She further testified that in July 1947 she purchased a lot and built a house on it in name of Ella Pennington;' executed deferred payment notes as Ella Pennington; paid it out in installments, and in June 1948 secured a $3,000 mortgage loan, executing a note as Ella Pennington to Metropolitan Loan Company; that she had been working for Lorch Manufacturing Company in Dallas for about fifteen years in name of Ella Pennington, a single woman; that she carried the name “Pennington” in all her dealings, executed withholding Federal tax reports in that name and reported to her employer daily slips of her work as a single woman; that she never signed a joint income tax report with the defendant; that she owned two houses in Dallas, insured in her name, as Ella Pennington, and had a fire loss on one of the houses and collected for the damage in name of Pennington. The only testimony offered by plaintiff corroborative of her own testimony, was that of her daughter-in-law Bessie Irene Pennington, and her daughter Gladys Pennington. Irene testified that she had been in the home of plaintiff when the defendant was there and that in the year 1942 she heard the defendant say that he and the plaintiff were married; that she lived across the street from plaintiff and had seen the defendant come and go, but never making it his home; that from November 6, 1939 to November 194Z, she had never heard of any marriage existing between the plaintiff and defendant; that the only thing he said was in 1942, — “he was married to her sometime in November 1939.” Gladys Pennington testified that in the summer of 1942 she was living with her mother, and after dark she suddenly opened the door to her home and saw the defendant disrobed, in the presence of her mother; witness said “I was shocked. He said it was all right because they were married. ‘Its my wife, Ella.’ ” She ga(ve no further testimony that she had ever heard of such marriage before that occasion, although she had been living with her mother and had been out with them frequently. The defendant categorically denied that he had ever been married to the plaintiff or anyone else; that he had ever procured a marriage license or seen any preacher as related by plaintiff, or ever said that they were married. Testified that he had never lived with plaintiff at any time or place and had no right to do so; that he has been in Dallas for about forty-two years, living with his mother on Pennsylvania Avenue; that he was 57 years of age; had known Ella Pennington for about sixteen years; she was single when he first knew her,— she was Ella Pennington; afterwards, in 1938, she married a man named Wichmann and later married a man named Alcorn. O. K. Crossett, Deputy Clerk, identified the marriage license records of Dallas County and testified that no license had ever been issued to either the plaintiff or defendant. Mrs. L. T. Crosson, sister of the defendant, testified that in November 1939, and for many years prior to and after said date, she and her husband lived in the same house with the defendant; that in November 1939 she and her three children were continuously at home in the room adjoining that of the defendant, and *591 that she knew nothing about a wedding then or at any other time, either personally or by repute. She further testified that her mother lived for many years, until her death in 1943, in the room on the other side of defendant’s room, and was there continuously throughout November 1939. Defendant then offered in evidence the calendar for 1939, showing that November 6, 1939 was on Monday and not on Sunday; also introduced employee’s withholding exemption certificate bearing date November 13, 1944, signed “Ella Pennington” and reciting therein that she was not married — a single person; also her employer’s work sheet, bearing the name of “Ella Pennington” as its employee. Against the foregoing statements and evidence of the plaintiff, is the testimony of an array of witnesses: Four neighbors of the defendant who had known him from his boyhood and had been thrown with him continuously up to the time of trial, testified that he was not married; had never been married and had lived as a single man during all of such period. They stated that they had heard of the lawsuit, and, without objection, related that they regarded it as an outrageous and iniquitous proceedings against a good and honorable man/ There being no ceremonial marriage established by proof worthy of probate force, we turn to the record as bearing on common-law marriage. To constitute a common-law marriage, three elements must exist and must be shown by the plaintiff upon whom rests the burden of proof: (1) There must be an agreement to become husband and wife; (2) a living together pursuant to the agreement, and (3) a holding out of each other to the public as husband and wife. Berger v. Kirby, 105 Tex. 611, 153 S.W. 1130, 51 L.R.A., N.S., 182; Martinez v. Martinez, Tex.Civ.App., 6 S.W.2d 408; Bell v. Southern Casualty Co., Tex.Civ.App., 267 S.W. 531. “The cohabitation must be professedly as husband and wife, and public, so that by their conduct towards each other they may be known as husband and wife.” Winters v. Duncan, Tex.Civ.App., 220 S.W. 219, 221. In Bargna v. Bargna, Tex.Civ.App., 127 S.W. 1156, 1160, the San Antonio Court of Civil Appeals, speaking through Justice Neill, said: “But such a contract, we think, should, in view of the sacredness of the relation and its importance to society of which it is the chief cornerstone, be satisfactorily proved. Consent, not living together in concubinage, constitutes marriage.” The evidence and record above related, recited substantially in appellant’s brief and not challenged by the appellee, may be accepted as correct. (Rule 419, Texas Rules of Civil Procedure.) And, in addition thereto, evidence which we accept as correct clearly shows no common-law marriage. Mrs. Irene Tompkins, who had rented quarters from defendant and lived in the same house where he lived from April 15, 1945 to the present, testified that he had lived alone in his own home during all of such period; that plaintiff had not lived there with him. Phil Kaufman testified that he had handled plaintiff’s fire insurance over a period of years and that all of her insurance policies with him had been in name of Ella Pennington and that she now has an insurance policy on 3221 South Boulevard, taken out on January 6, 1948, in the name of Ella Pennington. M. D. Blackburn of Stewart Title Company, Dallas, testified that he had a business transaction with the plaintiff early in 1948, in which he handled for 'her the renewal of a debt on some of her property; that it was handled in the name of Ella Pennington; and added: “In dealing with Mrs. Pennington from time to time she had always represented herself as a widow.” Mrs. John Kelly Hook, a bank clerk in the South Dallas Bank & Trust Company, testified that: “Mr. Janelli brought Mrs. Pennington to me to see about a loan for her son on a Sunday morning between the first and ninth of November, 1947”; that Mr. Janelli introduced her as “Mrs. Pennington” — a friend of his. She further testified: “Mrs. Pennington said that she was a friend of Mr. Janelli’s, they were quite good friends, that they would probably never marry because Mr. Janelli’s mother had objected during her lifetime and now Mrs. Pennington’s children were so opposed to it, but that they were quite good friends, and she asked him to take *592 her to my home so she could get some -information that I couldn’t give her * *.” Mrs. Esther Rubinstein testified that she was the office manager for Lorch Manufacturing Company; that plaintiff had worked there since 1931; that she had never gone under the name of Janelli, but that her name on the rolls of the Company from 1939 continuously to the present was Ella Pennington. She further testified that the withholding and social security tax statements showed plaintiff as Ella Pennington, a .single woman. We think a common-law marriage is refuted by the facts and circumstances in evidence and that a marriage did not exist as a basis for plaintiff’s suit. The whole face of the record is open to the suspicion that the plaintiff instituted her suit, not so much for the purpose of obtaining a divorce, but as a device for obtaining interest in and title to defendant’s property, thus inflicting on him expenses of litigation against the furtherance of such sinister aim. We are not unmindful of the rule that if there is any probative evidence to support the judgment of the trial court, appellate courts should not disturb the judgment. But the exception is that where the judgment is against the overwhelming weight of the evidence, tantamount to no evidence, Courts of Civil Appeals must set aside the judgment. The Texas Constitution, Art. 5, sec. 6, Vernon’s Ann.'St., and the Enabling Act of the Legislature, Art. 1820, R.S., provide that the decisions and judgments of Courts of Civil Appeals shall be conclusive in all cases on the facts of the case. Thus we conclude the evidence insufficient to sustain the action of the trial court in granting the harsh restraining and mandatory orders in reference to defendant’s separate property, in which the plaintiff is shown to have no right, title or interest. It will be seen from the record here, that, at the threshold of the hearing, the trial court admonished the litigants. We quote: “I am not going to decide the question of whether or not these people are married, but I am going to decide whether or not there is enough evidence to justify, in truth and in fact, a temporary restraining order that some judge has issued for this court, * * * that he is going to hear the injunction and the question of inventory, but was not going to pass on the marriage.” Hence, the basic element, the marriage, upon which the court could have made the temporary orders, not having been determined, the court orders are void. The plaintiff in brief makes cross-assignments of points of error that plaintiff’s suit being a “divorce suit,” and the interlocutory orders (object of this appeal) having been made ancillary to a “divorce suit,” no appeal lies perforce of Art. 4635 and Art. 4636, Vernon’s Ann.Rev. Civ.Sts. The brief cites the adjudicated cases of Beckler v. Beckler, Tex.Civ.App., 114 S.W.2d 618; Dakan v. Dakan, Tex.Civ.App., 53 S.W.2d 682; Roosth v. Roosth, Tex.Civ.App., 181 S.W.2d 974; Bean v. Peurifoy, Tex.CivApp., 74 S.W.2d 126; and it may well have cited Dyer v. Dyer, Tex.Civ.App., 87 S.W.2d 489, opinion by this Court. In those cases the Courts of Civil Appeals were dealing with “divorce suits” in which there was no controversial issue as to whether there was a marriage. Where marriage is shown, a presumption arises that its status is in existence until legally terminated by death, or by a court of divorcement, — indeed a “divorce suit.” “Divorce” means, primarily, the dissolution by law of the marital relation, and presupposes the existence of a valid marriage; and where there exists no valid marriage, the “divorce suit” is a nullity. Reese v. Reese, 128 Kan. 762, 280 Pa. 751; Dodds v. Pittsburgh, M. & B. Rys. Co. etc., 107 Pa.Super. 20, 162 A. 486. In a divorce suit the action of the court proceeds upon the proof that a valid marriage existed and created rights and liabilities; it dissolves marriage contracts. The phrase “cases of divorce” within the statute making jurisdiction of the Courts of Civil Appeals final in such cases, refers to “divorce actions” which include dissolution of bonds of matrimony and the determination of property rights. Art. 1821, Vernon’s Ann.Civ.Sts.; Burguieres v. Farrell, 126 Tex. 209, 87 S.W.2d 463; Kellett v. Kellett, 94 Tex. 206, 59 S.W. 809. In McDade v. McDade, 16 S.W.2d 304, 305, *593 the Texarkana Court of Civil Appeals said: “In view of the classification for judicial decree as made by the statute, the term ‘suit for divorce’ as used in article 4631, was intended to specifically relate and have application only to the same class of actions denominated ‘divorce’ in the meaning of divorce of a valid marriage for causes arising after marriage.” In the case of Grant v. Grant, 286 S.W. 647, 650, the Fort Worth Court of Civil Appeals said: “ * * * when rights are asserted and based upon an alleged common-law marriage, the courts will scrutinize the relation of the parties closely. The requirements of a common-law masriage need not be discussed nor determined in this opinion, but reference to the cases will show that they are strict.” See 18 R.C.L. p. 383. So, in the case at bar, the action for divorce for statutory cause is merely incident to and dependent upon the existence of a marriage, either statutory or common-law union, there' can be no “divorce suit,” to dissolve that which does not exist; and never did exist between the parties. The nature of the suit must be shown to mean what it is, as shown by the pleadings and substantial proof, and not that which is doubtful and uncertain. A suit merely denominated a “divorce suit,” which is lacking in essential elements, is not such a suit as to deprive an aggrieved party of his right of appeal, where, as in this case, the proof shows unmistakably that the suit is other than a divorce from bonds of matrimony. Art. 4636, R.S., reads: “Pending suit for a divorce the court, or the judge thereof, may make such temporary orders respecting the property and parties as shall be deemed necessary and equitable.” This court, in Dyer v. Dyer, supra [87 S.W.2d 490], said: “The pendency of a suit for divorce and the existence of a marriage, therefore, are essential elements to the exercise of this Irroad discretionary power of the court.” (Italics here supplied.) It follows that the nonexistence of a valid and subsisting marriage, as a matter of reason, the court may not exercise the statutory power in granting temporary orders to deprive one of the use of his property rights. It, therefore, is basic that marriage must be proved, and, having been proved, must be concurred in by the trial court that a valid and subsisting marriage exists between the parties, before the court or judge is authorized to make statutory orders as provided by law. The plaintiff is not authorized to maintain suit for property rights under guise of a divorce action. Wg think, under this record, appeal lies to this Court, the judgment of the lower court should be reversed and the cause remanded to that court with direction to set aside its orders granting the temporary injunction and ordering defendant to file inventory of his property; and, on further hearing, if the evidence presented should not be materially different, as disclosed in this appeal, on the issue of marriage, the suit should be dismissed. It is so ordered. Reversed and remanded with instructions.