

Opinion issued February 24, 2011
 

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-00421-CV
———————————
LAN NGOC NGUYEN, Appellant
V.
DINH DUC
NGUYEN, Appellee

 

 
On Appeal from the 246th District Court
Harris County, Texas

Trial Court Case No. 2007-74116
 

 
O P I N I O N
          Appellant,
Lan Ngoc Nguyen (“Lan”), sued Dinh Duc Nguyen (“Dinh”) for divorce.  After answering and filing a counter-petition
for divorce, in which he admitted that he was married to Lan, Dinh moved for
declaratory judgment pursuant to the Texas Uniform Declaratory Judgments Act
(“UDJA”), seeking a declaration that he never married Lan because he had
married Pham Kim Nguyet (“Pham”) in Vietnam approximately eight months before
the alleged ceremony to Lan.  After a bench
trial, the trial court ruled that Lan and Dinh had never married.  In two issues on appeal, Lan contends that
Dinh did not present legally and factually sufficient evidence to support the
trial court’s finding of fact that Lan and Dinh had never informally married
“due to the impediment of [Dinh’s] prior marriage.”
          We
reverse and remand.
Background
          Lan
met Dinh in 1995 when she started working in his chiropractic clinic, and they
eventually began dating.  Dinh traveled
to Vietnam in February 2000, where he allegedly married Pham on February 18.  Although Dinh returned to the United States
shortly thereafter and Pham remained in Vietnam, Dinh testified that he and
Pham never divorced and he “[s]trongly consider[ed]” Pham to be his wife.
          Lan
testified that after Dinh returned from Vietnam, he told her that he had become
engaged to Pham, but he had called off the marriage to Pham because he wanted
to marry Lan.  The trial court admitted a
picture taken at the February 2000 ceremony in Vietnam of Dinh and Pham
standing under a banner that read “Dinh Hom.” 
Lan testified that, in Vietnamese, “Dinh Hom” means “engagement.”
According to Lan, Dinh proposed to
her a few months after he returned.  Lan
testified that she and Dinh had a traditional Vietnamese wedding ceremony on October
7, 2000.  Dinh disputed the
characterization of the ceremony as a “wedding,” although he admitted that Lan
sent invitations for a “wedding ceremony,” that they dressed formally, that
they exchanged rings, that they had a wedding cake, and that they danced
together at this ceremony.[1]  Lan stated that a Vietnamese “Master of
Ceremonies” officiated and announced that Lan and Dinh were married.[2]  Lan testified that, after the ceremony, she
believed that she and Dinh were married and that Dinh often introduced her to
others as his wife.  Dinh stated that he
had “occasionally” told others that Lan was his wife, but he then immediately
testified to the contrary and stated that he had never introduced Lan as his
wife.  Although Lan and Dinh filled out
an application for a marriage license, in which Dinh stated that he was not
married to another, it is undisputed that the Harris County Clerk’s Office
never issued a marriage license to the couple.
          Lan
testified that she moved in with Dinh, and they lived together as husband and
wife.  Dinh named Lan as his spouse on an
insurance application, and she named “[her] husband” as her life insurance
beneficiary.  On cross-examination, Lan
agreed that she had listed her marital status as “single” on her federal income
tax forms and on loan applications to purchase a home and a car, but she stated
that Dinh had told her to write that she was single on these forms.
          Lan
and Dinh lived together until 2003, when they separated for approximately two
years.  Lan testified that they
reconciled in 2005 and that they lived together until December 2007, when Dinh
kicked Lan out of their house.  Lan filed
for divorce on December 10, 2007.
          Dinh
answered Lan’s petition, asserting a general denial and the affirmative
defenses of fraud and release.  Dinh also
filed a counter-petition for divorce, in which he stated that “[t]he parties
were married on or about November 1, 2005 and ceased to live together as
husband and wife on or about December 8, 2007.” 
Dinh attached a copy of a premarital agreement, executed by himself and
Lan on September 12, 2000, which stated that “[t]he parties plan to marry each
other, and intend to provide in this agreement for their property and other
rights that may arise because of their contemplated marriage.”  Both Lan and Dinh initialed each page and signed
the document.
          Dinh
later amended his answer and once again generally denied Lan’s
allegations.  Dinh also “denie[d] that
the parties were ever married, either ceremonially or through the application
of common law, and [he] affirmatively assert[ed] that [Lan] is attempting to
perpetrate a fraud upon this court with allegations that the parties are man
and wife.”  Dinh further amended his
counter-petition to state that the parties had never married.
          Dinh
simultaneously moved for a declaratory judgment under the UDJA, seeking a
declaration that no marriage existed between Lan and him.  Dinh denied the existence of a marriage, and
argued that Lan could not prove the elements of either a valid ceremonial or a
valid informal marriage.  Dinh did not
contend in this motion that he could not have validly married Lan because he
had previously married Pham and that marriage continued in existence.
          At
the bench trial on Dinh’s declaratory judgment motion, the trial court heard
evidence regarding whether a marriage existed between Dinh and Pham.  Dinh testified that he and Pham participated
in a formal wedding ceremony in Saigon, Vietnam on February 18, 2000.  According to Dinh, he and Pham never divorced
and he still considered himself married to her, even though she lives in
Vietnam and Dinh lives in Houston.  Dinh
stated that he and Pham had a wedding ceremony in Vietnam, and not merely an
engagement party, as Lan contended.  On
cross-examination, Dinh testified inconsistently regarding (1) whether he
and Pham obtained a marriage license in Vietnam and (2) whether a marriage
license was even necessary in Vietnam. 
Dinh first stated that he did not obtain a marriage license in Vietnam,
but then he disagreed with Lan’s counsel and twice stated that he and Pham had
obtained a marriage license.  Dinh then
testified that it was not necessary to obtain a marriage license to be legally married
in Vietnam.  Dinh did not present to the
trial court a marriage license, or the Vietnamese equivalent, demonstrating his
marriage to Pham.
          The
trial court admitted into evidence an “Application for Certification,” applied
for by Pham on June 24, 2008, and certified by Luong Thi Dung, the “Chief of
Town Section No. 3,” which reflected that Pham’s family performed a wedding
ceremony between Dinh and Pham on February 18, 2000.  In doing so, the trial court stated, “This is
offered only as to the date of a marriage, not to prove the marriage.  It does not prove the marriage.  And I’m not admitting it to prove a marriage.”  The trial court also admitted an affidavit
from Dung, stating that she made the certification to help Pham’s older sister.  Dung averred, “I trust in [Pham’s] family and
I made the certification according to the request of [Pham’s sister] to help her.  Actually, I did not know who was the groom in
the wedding ceremony mentioned above.”
          Pham
testified by deposition.  She stated that
she married Dinh on February 18, 2000, that she has “not yet” divorced him, and
that she still considered him to be her husband.  Lan presented further deposition testimony,
during which Pham was evasive and refused to answer questions from Lan’s
counsel regarding her alleged 2002 marriage to an Australian man.
          The
trial court ruled that Lan and Dinh “were never married and thus, a marriage
never existed between the two.”  Upon
request by Lan, the trial court issued findings of fact and conclusions of
law.  The trial court issued the
following findings:
(1) The court finds that [Lan]
and [Dinh] were never formally married and thus, a marriage never existed
between the two.
 
(2) The court further finds that
[Lan] and [Dinh] were never informally married due to the impediment of
[Dinh’s] prior marriage and thus, a marriage never existed between the two.
 
The court concluded that “[a] marriage never
existed, either formally or informally, between [Lan] and [Dinh].”
          Lan
moved for a new trial, contending that she had obtained “newly discovered
evidence” that Dinh and Pham never married. 
Lan attached affidavits from attorneys familiar with Vietnamese marriage
law and argued that common-law marriage does not exist in Vietnam and that Dinh
and Pham did not follow the appropriate procedures for formally registering and
recognizing their alleged marriage.  Lan
also presented evidence of a Vietnamese marriage certificate between Pham and
Howard Wilde, an Australian, registered in Ho Chi Minh City on May 27,
2002.  Lan further argued that the
putative spouse doctrine applied and entitled her to a division of the assets
obtained during her relationship with Dinh. 
Lan requested that the trial court rescind its final judgment and allow
a trial on the putative spouse issue.
          The
trial court denied Lan’s motion for new trial and this appeal followed.
Appellate Jurisdiction
          Although
Dinh contends that we have jurisdiction over this appeal, he mentions that this
may be “an unauthorized interlocutory appeal,” because the trial court’s
judgment is entitled “Final Judgment” with the handwritten addendum “(AS TO
MARRIAGE)” and it includes a sentence stating that “[t]he issue of the
existence of a marriage was bifurcated and tried separate and apart from all
other issues, by agreement of the parties.” 
We briefly address this issue.
          The
general rule is that, absent mostly statutory exceptions, an appeal may only be
taken from a final judgment.  Lehmann v. Har-Con Corp., 39 S.W.3d 191,
195 (Tex. 2001).  A judgment is final for
the purposes of appeal if it “disposes of all pending parties and claims in the
record, except as necessary to carry out the decree.”  Id.  The language of an order or judgment can make
it final if the language “expressly disposes of all claims and all
parties.”  Id. at 200; John v. Marshall
Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001) (per curiam) (applying
presumption from North East Independent
School District v. Aldridge, 400 S.W.2d 893, 897–98 (Tex. 1966), that
judgment rendered after conventional trial on merits and containing “Mother
Hubbard” clause is final and appealable).
          Here,
both Lan and Dinh sued each other for divorce. 
By finding, after a trial, that there was no formal marriage between Lan
and Dinh and that Dinh’s prior marriage to Pham constituted an impediment to an
informal marriage with Lan, and therefore Dinh and Lan never entered into a
valid marriage, the trial court effectively disposed of the claims between Lan
and Dinh.  Furthermore, the judgment of
the trial court expressly stated that “[a]ll relief not expressly granted
herein is denied.  This Judgment disposes
of all parties and all claims in this cause of action and is therefore
final.”  We conclude that the Aldridge presumption, that a judgment
rendered after a conventional trial on the merits is final and appealable,
applies in this case, and this is not an “unauthorized interlocutory
appeal.”  We therefore hold that we have
jurisdiction over this appeal.
Sufficiency of Evidence
          In
two issues, Lan contends that the evidence is legally and factually
insufficient to support the trial court’s finding of fact that Lan and Dinh
were never informally married due to the impediment of Dinh’s prior marriage to
Pham.
A.  
Standard of Review
In a bench trial, the trial court’s
findings of fact have the same weight as a jury verdict, and we review the
legal and factual sufficiency of the evidence to support the findings using the
same sufficiency standards as when we review a jury’s verdict.  Daniel
v. Falcon Interest Realty Corp., 190 S.W.3d 177, 184 (Tex. App.—Houston
[1st Dist.] 2005, no pet.) (citing Catalina
v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994)).  When challenged, a trial court’s findings of
fact are not conclusive if, as here, there is a complete reporter’s record on
appeal.  Id. (citing In re K.R.P.,
80 S.W.3d 669, 673 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)).
When conducting a legal sufficiency
review, we credit favorable evidence if a reasonable fact-finder could and
disregard contrary evidence unless a reasonable fact-finder could not.  City of
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.—Houston [1st Dist.]
2007, no pet.).  We consider the evidence
in the light most favorable to the finding under review and indulge every
reasonable inference that would support it. 
City of Keller, 168 S.W.3d at 822.  We sustain a no-evidence contention only
if:  (1) the record reveals a complete
absence of evidence of a vital fact; (2) the court is barred by rules of law or
of evidence from giving weight to the only evidence offered to prove a vital
fact; (3) the evidence offered to prove a vital fact is no more than a mere
scintilla; or (4) the evidence establishes conclusively the opposite of the
vital fact.  Id. at 810.
When conducting a factual
sufficiency review of a finding on which the appellant did not have the burden
of proof, we consider and weigh all of the evidence and set aside the judgment
only if the evidence supporting the challenged finding is so weak as to make
the judgment clearly wrong and manifestly unjust.  Figueroa
v. Davis, 318 S.W.3d 53, 59 (Tex. App.—Houston [1st Dist.] 2010, no pet.)
(citing Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986)).  When determining the
sufficiency of the evidence supporting a finding on which the appellant bears
the burden of proof, we set aside the judgment only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and manifestly
unjust.  Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston
[1st Dist.] 2007, pet. denied) (citing Cain,
709 S.W.2d at 176).  In a bench trial,
the trial court acts as the fact-finder and is the sole judge of the
credibility of witnesses.  HTS Servs., Inc. v. Hallwood Realty
Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no
pet.); see also Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (“It is a familiar
principle that in conducting a factual sufficiency review, a court must not
merely substitute its judgment for that of the [fact-finder].”).  The fact-finder may choose to believe one
witness over another, and we “may not impose [our] own opinion to the contrary.”  Figueroa,
318 S.W.3d at 60.
B.  
Validity of Dinh’s Prior Marriage to
Pham
A valid informal, or common-law,
marriage consists of three elements: 
(1) agreement of the parties to be married; (2) after the
agreement, their living together in Texas as husband and wife; and (3) their
representing to others in Texas that they are married.  Tex.
Fam. Code Ann. § 2.401(a)(2) (Vernon 2006); Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.—Houston [1st Dist.]
2001, pet. denied) (citing In re Estate
of Giessel, 734 S.W.2d 27, 30 (Tex. App.—Houston [1st Dist.] 1987, writ
ref’d n.r.e.)).  The existence of an
informal marriage is a fact question, and the party seeking to establish
existence of the marriage bears the burden of proving the three elements by a
preponderance of the evidence.  Weaver v. State, 855 S.W.2d 116, 120
(Tex. App.—Houston [14th Dist.] 1993, no pet.). 
An informal marriage does not exist “until the concurrence of all three
elements.”  Eris, 39 S.W.3d at 713 (citing Winfield
v. Renfro, 821 S.W.2d 640, 645 (Tex. App.—Houston [1st Dist.] 1991, writ
denied)).
A person may not be a party to an
informal marriage if the person is “presently married to a person who is not
the other party to the informal marriage.” 
Tex. Fam. Code Ann.
§ 2.401(d); see also Howard v.
Howard, 459 S.W.2d 901, 904 (Tex. Civ. App.—Houston [1st Dist.] 1970, no
writ) (“If an impediment to the creation of a lawful marriage between the
parties exists, as when one is married to
another . . . there can be no common law marriage even if
all the three elements are proved.”).  A
marriage is void if it is entered into when either party to the marriage has an
existing marriage to another person that has not been dissolved by legal action
or terminated by the death of the other spouse. 
Tex. Fam. Code Ann.
§ 6.202(a) (Vernon 2006).  When two
or more marriages of a person to different spouses are alleged, we presume that
the most recent marriage is valid against each marriage that precedes it, until
one who asserts the validity of a previous marriage proves its validity.  Id.
§ 1.102 (Vernon 2006); In re Estate
of Loveless, 64 S.W.3d 564, 573–74 (Tex. App.—Texarkana 2001, no
pet.).  This presumption is one of the
strongest known to law; it is, in itself, evidence; and it “may even outweigh
positive evidence to the contrary.”  Loveless, 64 S.W.3d at 574 (citing Tex. Emp’rs Ins. Ass’n v. Elder, 282
S.W.2d 371, 373 (Tex. 1955)).  The
presumption’s strength increases with the lapse of time, acknowledgments by the
parties to the marriage, and the birth of children.  Id.
This presumption that the most
recent marriage is valid continues “until a party proves the impediment of a
previous marriage and its continuing validity.” 
Id. (citing Estate of Claveria v. Claveria, 615
S.W.2d 164, 165 (Tex. 1981)).  The burden
of proof is, therefore, on the party challenging the most recent marriage on
the basis of a prior marriage to prove (1) the validity of the prior marriage
and (2) its continuing validity.  Id.; see
also Claveria, 615 S.W.2d at 165.
Traditionally, courts have used the
law of the place a marriage purportedly occurred to determine the validity of
the ceremony.  Loveless, 64 S.W.3d at 575 (citing Braddock v. Taylor, 592 S.W.2d 40, 42 (Tex. Civ. App.—Beaumont
1979, writ ref’d n.r.e.)).  Foreign law
“is regarded as a fact issue in the State of Texas.”  Franklin
v. Smalldridge, 616 S.W.2d 655, 657 (Tex. Civ. App.—Corpus Christi 1981, no
writ).  The party relying on such foreign
law must therefore strictly plead and prove the law.  Id.;
see also Tex. R. Evid. 203 (“A party
who intends to raise an issue concerning the law of a foreign country shall
give notice in the pleadings or other reasonable written notice, and at least
30 days prior to the date of trial such party shall furnish all parties copies
of any written materials or sources that the party intends to use as proof of
the foreign law.”); see also Loveless,
64 S.W.3d at 575 (recognizing trial court’s right to take judicial notice of
law of Honduras as evidence regarding validity of prior marriage, based on
portions of Honduran Family Code attached to purported wife’s motion for
summary judgment, as requested by purported wife).
The party attacking the validity of
the subsequent marriage must also introduce sufficient evidence, standing alone,
to negate the dissolution of the previous marriage.  Loveless,
64 S.W.3d at 574 (citing Wood v. Paulus,
524 S.W.2d 749, 758 (Tex. Civ. App.—Corpus Christi 1975, writ ref’d
n.r.e.)).  To rebut the presumption, the
proponent of the earlier marriage must prove that (1) the first spouse was
alive at the time the husband married the second wife; (2) the husband never
secured a divorce or annulment from the first wife; and (3) the first wife
never secured a divorce or annulment from the husband.  Medrano
v. State, 701 S.W.2d 337, 341 (Tex. App.—El Paso 1985, pet. ref’d).  After the party introduces some evidence of a
previous and continuing marriage, the fact-finder determines the weight of such
evidence.  Loveless, 64 S.W.3d at 574 (citing Claveria, 615 S.W.2d at 166 and Wood,
524 S.W.2d at 758).  We must therefore
determine (1) whether Dinh proved that his purported marriage to Pham was valid
under the law of Vietnam and, if so, (2) whether Dinh proved that he and Pham
had not secured a divorce or annulment at the time he purportedly married Lan.
Dinh contends that he presented
sufficient evidence to prove the existence of his prior marriage to Pham and
its continuance because both he and Pham testified that they married each other
in a ceremony in Vietnam on February 18, 2000, that they had not divorced, and
that they still considered themselves to be husband and wife.
Although Dinh, as the party
challenging the validity of the marriage to Lan by asserting the continuing
validity of a prior marriage to Pham, bore the burden of establishing the
validity of the alleged marriage to Pham, he made no effort to plead and prove
the law of Vietnam concerning the requirements for a valid marriage.  Dinh and Pham, testifying by deposition,
stated only that they had a “formal wedding ceremony” in Saigon, Vietnam on
February 18, 2000.  Neither party
testified regarding the details of the ceremony, nor did Dinh present evidence
that the alleged wedding ceremony was performed by one authorized under
Vietnamese or Texas law to perform weddings, such as a religious official or a
judge.  Dinh presented no evidence that
either Vietnamese or Texas law would recognize his and Pham’s actions as
constituting a valid ceremonial marriage.
Furthermore, Dinh testified
inconsistently at trial regarding whether he and Pham obtained a marriage
license and regarding whether such a license was even required under Vietnamese
law.  After Dinh testified that he
obtained a marriage license, having previously testified that he did not obtain
a license, Lan’s counsel impeached his testimony by presenting excerpts from
his earlier deposition, in which he stated that he did not obtain a
license.  See Tex. R. Evid.
613(a) (allowing impeachment by prior inconsistent statement).  Lan’s counsel asked Dinh, “You understand
that in Vietnam when people are married, there is going to be a marriage
license, right?”  Dinh replied, “Not
necessarily.”  Lan’s counsel then
impeached Dinh by reading an excerpt from his deposition in which counsel asked
Dinh the exact same question and he responded in the affirmative.  Dinh did not offer, and the trial court did
not admit, a marriage license demonstrating a valid marriage between Pham and
himself.
The only official documentation of
his purported marriage to Pham that Dinh presented was an “Application for
Certification” of the wedding ceremony, applied for by Pham, and the
accompanying certification by Luong Thi Dung, Chief of Town Section Number
3.  The certification stated that on
February 18, 2000, Pham’s family performed a wedding ceremony for Pham and
Dinh.  The trial court admitted this
document only to prove the date of the alleged marriage and not as proof of the
marriage.  Therefore, it does not
constitute evidence of the alleged prior marriage.  The document reflects that Pham applied for
the certification on June 24, 2008, more than eight years after the alleged
ceremony and nearly four months after Dinh amended his answer and
counter-petition and moved for declaratory judgment, asserting no marriage to
Lan.[3]
Moreover, the validity of this
document is affirmatively negated by the affidavit offered by Lan to disprove
the document’s validity.  The trial court
admitted an affidavit by Dung, the woman who certified that Pham’s family
performed a wedding ceremony, in which she stated that she made the
certification at the request of Pham’s elder sister and that she did not know
who the groom was at the ceremony.  This
affidavit constitutes an admission by the affiant that she did not make the
certification based on her personal knowledge. 
See Kerlin v. Arias, 274
S.W.3d 666, 668 (Tex. 2008) (per curiam) (holding, in summary judgment context,
that “affidavit showing no basis for personal knowledge is legally
insufficient”); Leavings v. Mills,
175 S.W.3d 301, 312 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding that
affidavit, which did not include basis for affiant’s knowledge, was incompetent
to prove facts in affidavit); see also
Tex. R. Evid. 602 (stating that
witness may not testify to matter unless party introduces sufficient evidence
to demonstrate that witness has personal knowledge of matter).  We conclude, therefore, that the
“certificate” of the marriage of Pham and Dinh is no evidence that Dinh and
Pham entered into a valid marriage on February 18, 2000.
Additional evidence introduced at
trial supports the conclusion that Dinh and Pham were not validly married at
the time of the October 7, 2000 ceremony between Lan and Dinh.  Dinh testified that, although he had previously
corresponded with Pham via e-mail, he first met her face-to-face when he
traveled to Vietnam in February 2000. 
The trial court admitted pictures of Dinh and Pham at their alleged
ceremony, standing under a banner reading “Dinh Hom.”  Both Lan and Dinh testified that, in Vietnamese,
“dinh hom” means “engagement.”[4]  Lan testified that, after Dinh returned from
Vietnam, he told her that he became engaged to Pham while he was in Vietnam,
but he called off the wedding to Pham because he wanted to marry Lan, and they
became engaged shortly thereafter.  When
asked at trial if he knew of Pham’s alleged subsequent marriage, Dinh replied
that he “[didn’t] know” about any other marriages and that “that’s [Pham’s]
life.”  Pham, in her deposition
testimony, was evasive and hostile and refused to answer any questions about
her alleged 2002 marriage to an Australian man. 
Lan attached to
her motion for new trial a certification of marriage between Pham and Howard
Wilde, an Australian, dated May 12, 2002. 
Dinh introduced no evidence that, even if he was validly married to Pham
on February 2000 (as to which no competent evidence was admitted), he was still
validly married to her at the time of his traditional Vietnamese wedding
ceremony to Lan on October 7, 2000, other than his own testimony that he and
Pham never divorced.  See Loveless, 64 S.W.3d at 576 (“[W]hile
Rosa did not have to present evidence showing the nonexistence of a divorce or
annulment in every jurisdiction where such proceedings could have been
possible, she did have to show the nonexistence of a divorce or annulment in
jurisdictions where she or James might reasonably have been expected to pursue
them.”).
Lan also introduced an application
for a marriage license in Harris County, signed by both Dinh and her, in which
he stated that was not presently married. 
Furthermore, in his original answer and counter-petition for divorce,
Dinh admitted that he and Lan were married, although he asserted that they
married on November 1, 2005, whereas Lan claimed October 7, 2000, as their
marriage date.  See Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235
(Tex. 2007) (per curiam) (holding that superseded pleadings are admissible in
evidence as admission of party opponent); see
also Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (per
curiam) (noting that “[c]ontrary to statements in live pleadings, [statements]
contained in superseded pleadings are not conclusive and indisputable judicial
admissions”).
Dinh and Pham’s testimony that they
had a formal wedding ceremony in Vietnam on February 18, 2000 and that they
still considered themselves to be husband and wife is some evidence of a valid
and continuing prior marriage.  When we
view all of the evidence in a neutral light, however, we conclude that Dinh
failed to carry his burden of proving either (1) his valid prior marriage to
Pham under Vietnamese law or (2) the continuing validity of such a prior valid
marriage, as required to overcome the strong presumption that his marriage to
Lan was valid.  See Loveless, 64 S.W.3d at 573–74; Claveria, 615 S.W.2d at 165. 
Rather, the evidence supporting the trial court’s finding of the
impediment of a prior marriage is so weak that the judgment is clearly wrong
and manifestly unjust.  We hold that the
trial court’s finding that no informal marriage existed between Dinh and Lan
due to the impediment of Dinh’s prior marriage to Pham is not supported by
factually sufficient evidence.
We sustain Lan’s second issue.
C.  
Evidence Supporting Trial Court’s
Determination of No Marriage
Dinh contends that the evidence
presented at trial supports the trial court’s ultimate conclusion in its final
judgment that Lan and Dinh “were never married and thus, a marriage never
existed between the two,” and thus the trial court’s judgment should be
affirmed, regardless of whether sufficient evidence supports the trial court’s
finding of an impediment to the informal marriage.
An erroneous finding of fact or
conclusion of law does not require a judgment to be reversed if the judgment is
otherwise correct on the merits.  Lee v. Lee, 981 S.W.2d 903, 906 (Tex.
App.—Houston [1st Dist.] 1998, no pet.). 
However, when findings of fact are filed by the trial court, these
findings “shall form the basis of the judgment upon all grounds of recovery and
of defense embraced therein.”  Tex. R. Civ. P. 299.  “The judgment may not be supported upon
appeal by a presumed finding upon any ground of recovery or defense, no element
of which has been included in the findings of fact . . . .”  Tex.
R. Civ. P. 299; Levine v. Maverick
Cnty. Water Control & Improvement Dist. No. 1, 884 S.W.2d 790, 796
(Tex. App.—San Antonio 1994, writ denied) (stating that if trial court’s
findings do not include findings on ground of recovery or defense, party
relying upon that ground on appeal must request additional findings or waive
ground of recovery or defense).  Express
findings made by the trial court “cannot be extended by implication to cover
further independent issuable facts.”  Jones v. Smith, 291 S.W.3d 549, 554
(Tex. App.—Houston [14th Dist.] 2009, no pet.); Intec Sys., Inc. v. Lowrey, 230 S.W.3d 913, 919 (Tex. App.—Dallas
2007, no pet.) (“[A]n express finding of fact cannot extend by implication to
cover independent grounds of defense . . . .”) (quoting F.R. Hernandez Constr. & Supply Co. v.
Nat’l Bank of Commerce, 578 S.W.2d 675, 679 (Tex. 1979)).
Here, the trial court stated in its
final judgment that Land and Dinh “were never married and thus, a marriage
never existed between the two.”[5]  In its findings of fact and conclusions of
law, the trial court specified that it found (1) that Lan and Dinh never
formally married, and (2) that Lan and Dinh never informally married “due to
the impediment of [Dinh’s] prior marriage [to Pham] and thus, a marriage never
existed between the two.”  Under Rule
299, these findings form the basis of the trial court’s judgment “upon all
grounds of recovery and of defense embraced therein.”  Tex.
R. Civ. P. 299.  The trial court
did not issue findings on the specific statutory elements of an informal
marriage.  See Tex. Fam. Code Ann.
§ 2.401(a)(2).
Whether an informal marriage is
void due to the impediment of a prior marriage and whether a party failed to
establish the necessary statutory elements for an informal marriage are two
separate and independent bases for finding “no informal marriage.”  See id.
§ 2.401(d) (stating that person cannot be party to informal marriage if
presently married to another); Howard,
459 S.W.2d at 904 (holding informal marriage cannot exist if one party is married
to another person, even if statutory elements otherwise established).  Because the trial court’s express findings
state only that Lan and Dinh never informally married because of the
impediment, and do not state that Lan failed to establish any of the statutory
elements of an informal marriage, the trial court’s express findings regarding
the impediment cannot be extended by implication to cover these independent
issuable facts.  See Jones, 291 S.W.3d at 554; see
also Tex. R. Civ. P. 299
(“The judgment may not be supported upon appeal by a presumed finding upon any
ground of recovery or defense, no element of which has been included in the
findings of fact . . . .”); Leonard v. Eskew, 731 S.W.2d 124, 132 (Tex. App.—Austin 1987, writ
ref’d n.r.e.) (“[B]ecause the trial court judgment rests upon the specific grounds set out in the findings
of fact and conclusions of law that accompany the judgment, we are not
permitted to assume omitted findings or conclusions necessary to any other grounds for the judgment, even
though such other grounds be pleaded in the case.”) (emphasis in original).
We therefore decline to follow
Dinh’s suggestion that we affirm the trial court’s judgment on the basis that
Dinh presented sufficient evidence contradicting the existence of the statutory
elements of an informal marriage, and that, therefore, the trial court’s
ultimate determination of no marriage is not against the great weight and
preponderance of the evidence.
 
 
Conclusion
          We
reverse and remand the case for determination of whether Lan can establish the
statutory elements of a valid informal marriage.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Justices Keyes, Higley, and Bland.
 
 




[1]
          Dinh repeatedly testified that
Lan “forced” him to send the invitations and “nagg[ed]” him into buying rings
and having a ceremony.
 


[2]           Lan conceded that the ceremony was not
performed by a religious official or a judge.


[3]
          In neither of these documents
did Dinh assert that he could not have validly married Lan because he was
already validly married to Pham.


[4]
          Dinh attempted to explain the photograph
by stating that he and Pham first had an engagement party and then they had a
wedding ceremony.


[5]
          The trial court’s final judgment
originally included two separate rulings stating that the parties were neither
formally nor informally married.  The
trial court scratched out the entire second sentence, relating to informal
marriage, as well as the “formally” from the first sentence, leaving the
following ruling:  LAN NGOC NGUYEN,
Petitioner, and DINH DUC NGUYEN, Respondent, were never married and thus, a
marriage never existed between the two.


