Opinion
No. 05-06-00217-CV
Delivered: April 17, 2007.
On Appeal from the County Court at Law Rockwall County, Texas, Trial Court Cause No. 1-05-756.
Before Justices MORRIS, WRIGHT, and FITZGERALD.
MEMORANDUM OPINION
Gwendolyn R. Jumper appeals the summary judgment order declaring her marriage to Larkin R. Jumper void. In four issues, appellant generally contends the trial court erred by granting appellee's motion for summary judgment because appellee failed to conclusively establish that appellant was legally married to Alex Ricky Glisson at the time she married appellee. For the following reasons, we agree with appellant and reverse the trial court's judgment.
Factual and Procedural Background
Appellant and appellee were married on July 8, 1998. On August 31, 2005, appellee filed a petition to declare the marriage void pursuant to section 6.202 of the family code. Appellee alleged that on August 28, 1983, appellant married Glisson and that marriage had not been dissolved by legal action or terminated by Glisson's death, rendering appellant's subsequent marriage to appellee void. After appellee filed his petition to declare his marriage to appellant void, appellant answered with a general denial and a counterpetition for divorce. Appellant also filed a separate suit in the same court seeking to have her marriage to Glisson declared void. Glisson did not contest the petition, and after considering the evidence and argument of counsel, the trial court entered a decree declaring the Glisson marriage void. Neither party appealed and that judgment became final on January 1, 2006.
In the meantime, appellee filed his motion for summary judgment. Appellee alleged that because appellant was "legally married" to Glisson, and that marriage had not been dissolved by legal action or terminated by Glisson's death, appellee and appellant's marriage was void pursuant to section 6.202 of the family code. In support of his motion, appellee relied, in part, on appellant's deposition testimony in which she testified that she and Glisson were married before a justice of the peace in Grayson County in August 1983, that Glisson was still alive, and that neither appellant nor Glisson had taken any action to end the marriage. He also relied on an affidavit from his attorney in which his attorney testified that a search of public records in the venues where Glisson would likely have filed for divorce did not reveal a suit for divorce. Appellant responded that her purported marriage to Glisson was void at its inception because at the time she married Glisson, he was legally married to Christine A. Holler. In her response, appellant argued, among other things, that even if appellee had met his burden to prove a valid marriage between herself and Glisson, her summary judgment evidence negated the proof supporting his motion. In support of her response, appellant relied, in part, on the decree declaring her marriage to Glisson void. After considering the summary judgment evidence, the trial court granted appellee's motion and declared the marriage between appellant and appellee void. This appeal followed.
Discussion
We review challenges to summary judgments granted under rule 166a(c) using well-known standards. See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). Appellee's burden as movant is to show he is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). Once appellee met his initial burden to show his right to summary judgment as a matter of law, the burden then shifted to appellant as nonmovant to present evidence precluding summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
Appellee sought a declaration that his marriage to appellant was void because she was married to Glisson at the time she married appellee. When, as here, two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid against each marriage that precedes it, until one who asserts the validity of a previous marriage proves its validity. Tex. Fam. Code Ann. § 1.102 (Vernon 1998). This presumption is one of the strongest, if not the strongest, known to law. Bailey-Mason v. Mason, 122 S.W.3d 894, 898 (Tex.App.-Dallas 2003, pet. denied) (citing Tex. Employers' Ins. Ass'n v. Elder, 155 Tex. 27, 30, 282 S.W.2d 371, 373 (1955)). To overcome this presumption, appellee was required to show that his marriage to appellant was void because appellant had an existing marriage to Glisson that had not been dissolved by legal action or terminated by the death of the other spouse. See Tex. Fam. Code Ann. § 6.202 (Vernon 2006).
Appellee met his initial summary judgment burden with evidence showing appellant and Glisson had been married before a justice of the peace, Glisson was alive, and that the marriage had not been dissolved. The burden then shifted to appellant to produce evidence precluding summary judgment. Appellant produced, among other things, a final decree declaring her marriage to Glisson void. A marriage entered into while one party is married to another person is void from the outset as a matter of law. Phillips v. The Dow Chemical Co., 186 S.W.3d 121, 127 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Villegas v. Griffin Indus., 975 S.W.2d 745, 749-50 (Tex.App.-Corpus Christi 1998, pet. denied). Such a marriage is absolutely null, having no force or effect for any purpose, at any place or time, and whose invalidity may be asserted by anyone, at any time, directly or collaterally. See Simpson v. Neely, 221 S.W.2d 303, 308 (Tex.Civ.App.-Waco 1949, writ ref'd). If a marriage has no force or effect for any purpose, at any place or time, it necessarily follows that a void marriage cannot be an "existing marriage" for purposes of section 6.202 of the family code. Because appellant's summary judgment proof conclusively shows the Glisson marriage was void, appellee cannot rely on its existence to meet his summary judgment burden to conclusively prove his marriage to appellant was void pursuant to section 6.202. Thus, the section 1.102 presumption that appellant and appellee's marriage is valid remains intact, and the trial court erred by concluding otherwise.
Our conclusion does not, as appellee suggests, place an "impossible burden" on appellee to show that there was no impediment preventing appellant and Glisson from marrying. As we have previously concluded, appellee's summary judgment proof was sufficient to meet his initial summary judgment burden. At that point, appellee responded with evidence negating appellee's proof. Thus, no burden was placed on appellant to show the lack of an impediment preventing appellant and Glisson from being validly married.
In reaching this conclusion, we are mindful of Hovious v. Hovious, No. 02-04-00169-CV, 2005 WL 555219 (Tex.App.-Fort Worth 2005, pet. denied). In Hovious, the Fort Worth Court of Appeals determined the husband met his burden to show the validity of the wife's previous marriage by showing a certified marriage certificate and that his research had not found a valid divorce decree. Id. at *8. The court concluded he was not also required to show wife and her previous husband could legally marry. Id. Thus, contrary to the parties' suggestion, Hovious is in keeping with our determination in this case. As discussed above, appellee is under no burden to show that appellant and Glisson could legally marry, just as the court concluded in Hovious. However, that appellee has no such burden does not somehow preclude appellant from producing evidence that she could not legally marry to defeat appellee's motion.
Nor does the fact that appellee was not a party to the Glisson marriage prevent appellant from using a final judicial determination that the marriage was void as summary judgment evidence to negate his proof showing the same marriage was valid. A suit to have a marriage declared void is "a suit in rem, affecting the status of the parties to the purported marriage." Tex. Fam. Code Ann. § 6.307 (Vernon 2006). In rem judgments are binding upon the whole world and may not be collaterally attacked. See Ladehoff v. Ladehoff, 436 S.W.2d 334, 336 (Tex. 1968) (an in rem judgment is binding upon the whole world); Schindler v. Schindler, 119 S.W.3d 923, 928 (Tex.App.-Dallas 2003, pet. denied) (same); Dearing v. Johnson, 947 S.W.2d 641, 644 (Tex.App.-Texarkana 1997, no pet.) (divorce decree may not be collaterally attacked). Thus, appellee's argument that the decree declaring the Glisson marriage void is of no effect in this suit because it is not binding on him lacks merit. We sustain appellant's fourth issue contending, in part, that her summary judgment proof conclusively establishes the Glisson marriage was not a legal impediment to the Jumper marriage.
Accordingly, we reverse and remand to the trial court for further proceedings.