Garduno v. Garduno

760 S.W.2d 735, 1988 Tex. App. LEXIS 2580, 1988 WL 112841
CourtCourt of Appeals of Texas
DecidedOctober 20, 1988
Docket13-87-513-CV
StatusPublished
Cited by20 cases

This text of 760 S.W.2d 735 (Garduno v. Garduno) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garduno v. Garduno, 760 S.W.2d 735, 1988 Tex. App. LEXIS 2580, 1988 WL 112841 (Tex. Ct. App. 1988).

Opinion

OPINION

KENNEDY, Justice.

Roberto Garduño appeals from the judgment of the trial court finding that he and Margarita Garduño, appellee, had entered both putative and common law marriages to each other between 1980 and 1986. The court granted appellee’s petition for divorce, awarded her certain property held by the couple during those years, and ordered appellant to pay arrearages on a temporary support order entered earlier. Appellant brings six points of error challenging the sufficiency of the evidence to show that a putative or common law marriage ever arose, the court’s award of property to appellee based on a putative or community property interest, and the court’s order for temporary support of ap-pellee.

According to her testimony, appellee met appellant in the latter part of 1979, shortly after she divorced her former husband with whom she had lived in Mexico. Appellant told appellee that he was divorced also at that time. In early 1980, appellee moved into a condominium unit that appellant *738 owned in Brownsville. Appellant moved into the same unit around the middle of the year, and the two lived there together and represented themselves to others as husband and wife from that time until appellee moved out in 1986.

In January of 1981, appellee learned from appellant’s daughter that he was still married to a woman who lived in Mexico. Appellant, however, assured her that he would divorce his wife and that he intended to marry appellee. Appellant then attempted to divorce his wife through the Mexican courts. In April 1984 he obtained a Mexican divorce decree which he showed to appellee. However, appellant’s Mexican divorce lawyer informed him shortly thereafter that the divorce had been set aside by an appellate court, which appellant also told appellee.

Finally, appellant petitioned for divorce in Texas and a decree was signed on December 3, 1985. The couple continued to live together until appellant physically assaulted appellee in the spring of 1986. Ap-pellee then moved out of the condominium unit and petitioned for divorce. Appellee also petitioned for a temporary support order, which was not made a part of the record on appeal.

During the course of their relationship, the couple acquired a large amount of property, including a 1986 Volkswagon with title in both names and used primarily by appellee, a 1985 Cadillac used primarily by appellant, a $100,000 certificate of deposit which was put in appellant’s name in trust for appellee, a vacation time share plan in both names, and 1,500 shares of stock in United Amore’s, Inc. Appellant had purchased the condominium unit before he met appellee, but conveyed it to the couple jointly in 1984. In the present divorce decree, the trial court awarded to appellee the personal property and cash in her possession, the 1986 Volkswagon, and a 25% interest in the certificate of deposit, the stock, the vacation time share plan, and the condominium unit, based upon half of appellant’s community property half-interest in the property, (his former wife owned the other half) All other property was awarded to appellant. The court finally ordered appellant to pay $3,400 in arrear-ages from the prior order for temporary support.

In points one, two, and seven appellant complains that the trial court erred in finding that either a putative or a common law marriage arose during the period of the couple’s relationship. Point one complains that a putative marriage could not have arisen, because appellee was aware of appellant’s prior undissolved marriage. Points two and seven challenge the sufficiency of the evidence to establish the existence of a common law marriage after appellant divorced his first wife. In considering a “no evidence”, “insufficient evidence” or “against the great weight and preponderance of the evidence” point of error, we will follow the well-established test set forth in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Co. v. Garza, 626 S.W.2d 120 (Tex.App.—Corpus Christi 1981, writ ref’d n.r.e.); and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960).

The elements of a common law marriage are: (1) a present agreement to be husband and wife; (2) living together as husband and wife; and (3) holding each other out to the public as such. Tex.Fam. Code Ann. § 1.91(a)(2) (Vernon 1975); Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex.1981); Leal v. Moreno, 733 S.W.2d 322, 323 (Tex.App.—Corpus Christi 1987, no writ).

A putative marriage is one that was entered into in good faith by at least one of the parties, but which is invalid by reason of an existing impediment on the part of one or both parties. Dean v. Goldwire, 480 S.W.2d 494, 496 (Tex.Civ.App.—Waco 1972, writ ref’d n.r.e.). A putative marriage may arise out of either a ceremonial or common law marriage. Rey v. Rey, 487 S.W.2d 245, 248 (Tex.Civ.App.—El Paso 1972, no writ); Whaley v. Peat, 377 *739 S.W.2d 855, 858 (Tex.Civ.App.—Houston [1st Dist] 1964, writ ref’d n.r.e.). The effect of a putative marriage is to give the putative spouse who acted in good faith the same right in property acquired during the marital relationship as if he or she were a lawful spouse. Davis v. Davis, 521 S.W.2d 603, 606 (Tex.1975); Padon v. Padon, 670 S.W.2d 354, 356 (Tex.App.—San Antonio 1984, no writ). However, there being no legally recognized marriage, property acquired during a putative marriage is not community property, but jointly owned separate property. See Mathews v. Mathews, 292 S.W.2d 662, 665 (Tex.Civ.App.—Galveston 1956, no writ).

It is clear from the evidence that appellant’s prior marriage was an impediment to a valid common law marriage to appellee, until the divorce became final on January 3, 1986. The parties could still have entered a putative marriage, however, during the times that appellee was unaware of the prior marriage or believed it had been terminated. See Dean, 480 S.W.2d at 496.

In January 1981 appellee first became aware of appellant’s prior marriage. Appellee had knowledge of this impediment for the remainder of the prior marriage, with the exception of a short period in the spring of 1984 when she believed that the marriage had been dissolved by a Mexican divorce.

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Bluebook (online)
760 S.W.2d 735, 1988 Tex. App. LEXIS 2580, 1988 WL 112841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garduno-v-garduno-texapp-1988.