Waite v. Waite

64 S.W.3d 217, 2001 Tex. App. LEXIS 7795, 2001 WL 1474459

• Court: Court of Appeals of Texas
• Decided: November 21, 2001
• Docket: 14-00-01330-CV
• Status: Published

Opinions

PLURALITY OPINION

PAUL C. MURPHY, Senior Chief Justice.

Daniel Waite, Sr. (“appellant”) appeals the trial court’s denial of his request for a temporary injunction to restrain the enforcement of section 6.001 of the Texas Family Code which allows the granting of “no-fault” divorces. Specifically, appellant argues that section 6.001 violates 1) the Free Exercise and Establishment Clause of the U.S. Constitution and Texas Constitution article 1, section 6; 2) the “free institutions” clause of the Texas Constitution; and 3) the “open courts” provision of the Texas Constitution. Additionally, appellant asserts that section 6.502 of the Texas Family Code constitutes an unconstitutional invasion of his privacy under the Texas Constitution, as well as a violation of the Free Exercise Clause of the Texas Constitution. Lastly, appellant contends that the trial court erred in awarding attorney’s fees to appellee. We affirm.

I. Standard of Review

The denial of a temporary injunction is reviewed for a clear abuse of discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993); Landry’s Seafood Inn & Oyster Bar—Kemah, Inc. v. Wiggins, 919 S.W.2d 924, 926 (Tex.App.—Houston [14th Dist.] 1996, no writ). The trial court’s legal conclusions are reviewed de novo. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992); Eakin v. Acosta, 21 S.W.3d (Tex.App.—San Antonio 2000, no pet.).

II. Background

This is a divorce case in which Margaret Waite (“appellee”) is seeking a divorce from appellant. Section 6.001 of the Texas Family Code provides:

On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.

Tex. Fam.Code Ann. § 6.001 (Vernon 1998). Invoking this “no-fault” divorce provision of the Texas Family Code, appellee alleged that “[t]he marriage has become insupportable because of discord or conflict of personalities between Petitioner and Respondent that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.” On September 19, 2000, appellant filed his first amended plea to the jurisdiction and his second amended petition for declaratory judgment, attacking the constitutionality of section 6.001 of the Texas Family Code. In his second amended petition for declaratory judgment, appellant requested that the trial court issue a temporary injunction enjoining appellee from relying upon various statutes as the basis of her cause of action.¹ The trial court held a hearing on appellant’s plea to the jurisdiction and petition for declaratory judgment in which appellant submitted evidence through the use of expert witnesses. After hearing all of the evidence, the trial court denied both the plea to the jurisdiction and the petition for declaratory judgment, and pursuant to the Declaratory Judgment Act, awarded attorney’s fees to appellee.²

III. Discussion

Whether section 6.001 is unconstitutional as a violation of the U.S. and/or Texas Constitutions is a question of law which we review de novo.

A. “Legitimate Ends of Marriage” and “Reconciliation” — Sacramental or Civil in Nature?

Appellant initially challenges the constitutionality of section 6.001 on the basis that it violates, 1) the Establishment Clause of the U.S. Constitution, because it entangles the judiciary in religious issues; and 2) the Free Exercise Clause of the U.S. Constitution and the “rights of conscience” guarantee under the Texas Constitution, because it requires the judiciary to interfere in a religious dispute. Appellant premises both of these arguments on the presumption that the terms “reconciliation” and “legitimate ends of marriage” are objectively religious. We disagree with this presumption. We also disagree with appellee’s contention that there exists two distinct forms of marriage — sacramental and civil. Precedent supports neither proposition.

Our analysis of cases addressing the role of marriage in society reveals that there is only one form of marriage which serves different purposes. See Maynard v. Hill, 125 U.S. 190, 210-11, 8 S.Ct. 723, 31 L.Ed. 654 (1888) (“It is also to be observed that, whilst marriage is often termed by text writers and in decisions of courts a civil contract, generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization, it is something more than a mere contract.”); Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, 1130 (1913) (“The term, ‘civil contract,’ as applied to marriage, means nothing now, for there does not exist the church’s claim that it is a religious rite; there is nothing to be differentiated by the language; it is obsolete.”); Gowin v. Gowin, 264 S.W. 529, 540 (Tex.Civ.App.—Fort Worth 1924), aff'd, 292 S.W. 211 (Tex.1927) (Conner, C.J., dissenting) (“[T]he main purpose of calling marriage a civil contract is to negative the idea that it is an ecclesiastical sacrament, or that in the eye of the law it is controlled by the mandates or dogmas, or subject to the observance of the rituals or regulations, of any particular churches or sects.”).

With regard to the purposes marriage serves for society, “[marriage] is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.” Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 31 L.Ed. 654 (1888). It is this public interest in marriage which allows the state to regulate not only the creation of the marriage, but its dissolution as well. Id. at 205, 8 S.Ct. 723 (noting that the legislature “prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution”); Leon v. Torruella, 99 F.2d 851, 855 (1st Cir.1938) (“[I]t has been recognized from time out of memory that it is within the power of the legislature of a state to enact laws defining who, when, and under what circumstances its citizens and subjects may marry and the causes of divorce upon which the marriage status may be dissolved whenever the public good or justice to either or both of the parties would thereby be preserved.”); In re Marriage of Richter v. Richter, 625 N.W.2d 490, 494 (Minn.Ct.App.2001).

Appellant asserts that any determination by the trial court of what constitutes the “legitimate ends of marriage” or the reasonable expectation of “reconciliation” necessarily involves a religious determination. Legal precedent, however, suggests otherwise. We believe, as was true in 1888, that the trial court is not being asked to make a religious determination, but rather to determine whether the continuance of the marriage relation has been rendered intolerable to the other party, and productive of no possible benefit to society. See Maynard, 125 U.S. at 205, 8 S.Ct. 723. The Texas legislature could rationally conclude that public policy requires an accommodation to the unfortunate reality that a marital relationship may terminate without regard to the fault of either marital partner, and that such a relationship should therefore be dissolva-ble in law upon a judicial determination that the marriage has become insupportable.³ See Joy v. Joy, 178 Conn. 254, 423 A.2d 895, 896 (1979). Accordingly, we overrule appellant’s assertion that section 6.001 violates, 1) the Establishment Clause of the U.S. Constitution because it entangles the judiciary in religious issues; and 2) the Free Exercise Clause of the U.S. Constitution and the “rights of conscience” guarantee under the Texas Constitution, because it requires the judiciary to interfere in a religious dispute.

B. Free Institutions Clause of the Texas Constitution

Additionally, appellant argues that section 6.001 violates the “free institutions” clause of the Texas Constitution. Specifically, appellant asserts that the institution of marriage is one of the institutions protected by article I, section 1 of the Texas Constitution. We disagree.

Article I, section 1 of the Texas Constitution provides as follows:

Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.

Tex. Const, art. I, § 1. While we recognize that marriage is often referred to as an “institution,” the institution of marriage is not one of the “free institutions” contemplated in the language of article I, section 1 of the Texas Constitution. Instead, the language “free institutions” is a reference to institutions of state government necessary to ensure the right of local self-government. See Tex. Const, art. I, § 1 interp. commentary (Vernon 1997) (“The provision of Section 1 referring to the right of local self-government ... seems to be declaratory of the distribution of powers between the two governments, laying down the proposition that the right of local self-government remains unimpaired to all the states.”); Davenport v. Garcia, 834 S.W.2d 4, 17 (Tex.1992)(orig.proceeding). Accordingly, appellant’s reliance on the “free institutions” clause of the Texas Constitution to challenge the constitutionality of section 6.001 of the Texas Family Code is misplaced. Appellant’s assertion that section 6.001 violates article I, section 1 of the Texas Constitution is overruled.

C. The Open Courts Doctrine

Next, appellant challenges the constitutionality of section 6.008 of the Texas Family Code as a violation of the “open courts” provision of the Texas Constitution. Specifically, appellant argues that by abolishing the defense of recrimination, the legislature arbitrarily and unreasonably interfered with his access to the courts.⁴ We disagree.

Article I, section 13 of the Texas Constitution states: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Tex. Const, art. I, § 13. This provision is directed at prohibiting the legislature from abrogating or unreasonably restricting a litigant’s right to seek redress by way of a well-established common law cause of action. Rose v. Doctors Hospital, 801 S.W.2d 841, 843 (Tex.1990); Capellen v. Capellen, 888 S.W.2d 539, 545 (Tex.App.—El Paso 1994, writ denied). The “open courts” provision, however, does not apply to suits for divorce because they are not common law causes of action, but rather statutorily created and regulated proceedings. Capellen, 888 S.W.2d at 545-46 (holding “[b]ecause suits for divorce ... are not common law causes of action, but are statutorily created and regulated proceedings designed to meet the changing desires and needs of the people in a dynamic society, the ‘open courts’ provision has no application”); see Gowin v. Gowin, 292 S.W. 211, 214 (Tex.1927) (holding that the grounds for divorce are dependent upon the sovereign will, and the state may at any time take away that right entirely or change the conditions of its existence). Accordingly, we overrule appellant’s “open courts” challenge to section 6.008 of the Texas Family Code.

D. Privacy Arguments

Appellant contends that section 6.502(3) of the Texas Family Code violates article I, section 9 of the Texas Constitution while section 6.502(7) violates article I, section 6 of the Texas Constitution. Without deciding the merits of these arguments, we find such arguments not ripe for our review.

The courts of this state are not empowered to give advisory opinions. Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc., 971 S.W.2d 439, 443 (Tex.1998); Wessely Energy Corp. v. Jennings, 736 S.W.2d 624, 628 (Tex.1987); United Servs. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 859 (Tex.1965). This prohibition extends to cases that are not yet ripe. Patterson, 971 S.W.2d at 443; Camarena v. Texas Employment Comm’n, 754 S.W.2d 149, 151 (Tex.1988); Public Util. Comm’n v. Houston Lighting & Power Co., 748 S.W.2d 439, 442 (Tex.1987). A case is not ripe when its resolution depends on contingent or hypothetical facts, or upon events that have not yet come to pass. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex.2000); Patterson, 971 S.W.2d at 443; Camarena, 754 S.W.2d at 151 (holding trial court could not grant relief based on “a hypothetical situation which might or might not arise at a later date. District courts, under our Constitution, do not give advice or decide cases upon speculative, hypothetical or contingent situations.”). “By focusing on whether the plaintiff has a concrete injury, the ripeness doctrine allows courts to avoid premature adjudication, and serves the constitutional interests in prohibiting advisory opinions.” Gibson, 22 S.W.3d at 852.

Appellant complains that section 6.502(3) allows a court to order a party to a divorce suit to produce those items protected by article I, section 9, namely that person’s “books, papers, documents, and tangible things.” Appellant, however, fails to identify for this Court any specific order requiring production of documents protected by article I, section 9. Thus, appellant presents us with no concrete injury. Accordingly, any opinion as to the constitutionality of section 6.502(3) would be contingent upon events that have yet to occur, amounting to nothing more than an advisory opinion.

Likewise, appellant’s complaint regarding section 6.502(7) of the Texas Family Code is not ripe for judicial determination. Section 6.502(7) allows a court to prohibit the parties, or either party, from spending funds beyond an amount the court determines to be for reasonable and necessary living expenses. Violation of such an order would subject the violator to contempt of court. See Tex. Fam.Code Ann. § 6.506 (Vernon 1998). Appellant argues that “[t]he court might decide that gifts to charitable causes were not ‘reasonable and necessary living expenses’ and punish the philanthropist for contempt of court.” Appellant, however, has failed to identify any order by the trial court in this case declaring his charitable contributions, if any, unreasonable, or holding him in contempt for making charitable contributions. Accordingly, any opinion as to the constitutionality of section 6.502(7) would be the equivalent of an advisory opinion. We overrule appellant’s constitutional challenges to sections 6.502(3) and (7) of the Texas Family Code.

E. Attorney’s Fees

In his last point of error, appellant challenges the trial court’s award of attorney’s fees to appellee pursuant to its denial of the declaratory judgment action. First, appellant asserts that there is no evidence of attorney’s fees because the witness who testified as an expert, Mr. Grimes, was not a competent witness. Second, appellant asserts that the trial court abused its discretion in awarding attorney’s fees on appeal from the declaratory judgment, when the trial court did not award attorney’s fees for trial on the declaratory judgment. We lack jurisdiction, however, to consider the merits of appellant’s arguments.

The trial court awarded attorney’s fees pursuant to its denial of the declaratory judgment action. See Tex. Civ. PRAC. & Rem.Code Ann. § 37.009 (Vernon 1997). However, neither interlocutory orders denying declaratory judgments, nor interlocutory attorneys’ fee awards are ap-pealable.⁵ See Tex. Crv. PRAC. & Rem.Code Ann. § 51.014 (Vernon Supp.2001). Accordingly, we lack jurisdiction to consider appellant’s challenges to the trial court’s award of attorney’s fees as a result of its denial of appellant’s declaratory judgment action.⁶

IV. Conclusion

Having overruled all of appellant’s points of error, we affirm the judgment of the trial court in denying appellant’s request for a temporary injunction.

EDELMAN, J., concurs.

FROST, J., concurs and dissents.

1 . It is the trial court’s denial of this temporary injunction which is before us on appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(4) (Vernon Supp.2001) (permitting interlocutory appeal of orders granting or refusing to grant a temporary injunction).

2 . We note that no written order appears in the record before us regarding the award of attorney’s fees to appellee.

3 . This opinion should not be read as approving of "no-fault” divorce. Whether the "no-fault” divorce movement in Texas has accomplished the purposes and goals as envisioned by the Texas Legislature is a matter left solely to the determination of the citizens of Texas and their elected representatives. We limit our review to the constitutionality of the “no-fault” divorce statute.

4 . Section 6.008 provides: “(a) The defenses to a suit for divorce of recrimination and adultery are abolished, (b) Condonation is a defense to a suit for divorce only if the court finds that there is a reasonable expectation of reconciliation.” Tex. Fam.Code Ann. § 6.008 (Vernon 1998).

5 . Section 51.014 provides:

(а) A person may appeal from an interlocutory order of a district court ... that:

(1) appoints a receiver or trustee;

(2) overrules a motion to vacate an order that appoints a receiver or trustee;

(3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure;

(4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as provided by Chapter 65;

(5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state;

(б) denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article 1, Section 8, of the Texas Constitution, Chapter 73.

(7)grants or denies the special appearance of a defendant under rule 120a, Texas rules of Civil Procedure, except in a suit brought under the Family Code; or

(8)grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001.

(b) An interlocutory appeal under Subsection (a) shall have the effect of staying the commencement of a trial in the trial court pending resolution of the appeal.

Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon Supp.2001).

6 . We are permitted, however, to address appellant's constitutional arguments because they were framed as requests for a temporary injunction, which is immediately appealable. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(4) (Vernon Supp.2001). However, "an appeal of a temporary injunction is not a vehicle which imbues the court with jurisdiction to address interlocutory matters outside the scope of section 51.014 of the Texas Civil Practice and Remedies Code.” Letson v. Barnes, 979 S.W.2d 414, 417 (Tex.App.—Amarillo 1998, pet. denied). When a litigant challenges both appealable and unap-pealable interlocutory orders, we "review the portion of an order which is appealable and refuse to consider the portion which is not-appealable.” Markel v. World Flight, Inc., 938 S.W.2d 74, 78 (Tex.App.—San Antonio 1996, no writ).