annulment of marriage base on non-disclosure or misrepresentation as to number of prior marriages

Leax v. Leax (Tex.App.- Houston [1st Dist.] Jun. 11, 2009) (Keyes)
(suit for annulment, marriage and divorce fraud, serial wife divorcee, pattern of domestic violence
allegations, concealment of numerous prior marriages, fraud in the inducement)
AFFIRM TC JUDGMENT:
Before Justices Keyes, Hanks and Bland. Opinion by Justice Evelyn Keyes
01-08-00149-CV Elaine Leax v. Robert W. Leax
Appeal from 246th District Court of Harris County
Trial Court Judge: Hon. Jim York

OPINION EXCERPT

Annulment

In her first issue, Elaine argues that the trial court erred in granting an annulment instead of a
divorce because the evidence was legally and factually insufficient to support granting an
annulment under the Texas Family Code.

A. Standard of Review

We review conclusions of law de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789,
794 (Tex. 2002). Findings of fact in a case tried to the court have the same force and dignity as a
jury's verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.
Civ. App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.). The trial court's findings of fact are not
conclusive when, as here, we have a complete reporter's record. Middleton v. Kawasaki Steel
Corp., 687 S.W.2d 42, 44 (Tex. App.--Houston [14th Dist.]), writ ref'd n.r.e., 699 S.W.2d 199 (Tex.
1985). The trial court's findings of fact are reviewable for legal and factual sufficiency of the
evidence using the same standards that are applied in reviewing the sufficiency of the evidence
underlying jury findings. Vannerson v. Vannerson, 857 S.W.2d 659, 667 (Tex. App.--Houston [1st
Dist.] 1993, writ denied).

When, as here, an appellant attacks the legal sufficiency of an adverse finding on an issue for
which she did not have the burden of proof, she must demonstrate that there is no evidence to
support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In a legal
sufficiency, or "no-evidence," review, we determine whether the evidence would enable reasonable
and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). In conducting this review, we credit favorable evidence if reasonable jurors could
and disregard contrary evidence unless reasonable jurors could not. Id. We consider the evidence
in the light most favorable to the finding under review and indulge every reasonable inference that
would support it. Id. at 822. We must 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; Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997).

In reviewing a challenge to the factual sufficiency of the evidence, we must consider and weigh all of
the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight
of the evidence as to be clearly wrong and unjust. Arias v. Brookstone, L.P., 265 S.W.3d 459, 468
(Tex. App.--Houston [1st Dist.] 2007, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986)).

The fact finder is the sole judge of witnesses' credibility; it may choose to believe one witness over
another, and a reviewing court cannot impose its own opinion to the contrary. Wilson, 168 S.W.3d
at 819; Arias, 265 S.W.3d at 468. Because it is the fact finder's province to resolve conflicting
evidence, we must assume that the fact finder resolved all evidentiary conflicts in accordance with
its decision if a reasonable human being could have done so. Wilson, 168 S.W.3d at 819; Arias,
265 S.W.3d at 468. An appellate court may not impose its own opinion to the contrary of the fact
finder's implicit credibility determinations. Wilson, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468.

B. Analysis

The trial court found that Elaine misled Robert concerning the number of her previous marriages
and intentionally withheld from him the existence of five previous marriages. The trial court also
found that Elaine's misrepresentation was material and was made for the purpose of inducing
Robert to enter into the marriage, that Robert did rely on Elaine's representations regarding the
number of her previous marriages when he entered the marriage with Elaine, and that his reliance
was reasonable and resulted in harm to him. The trial court concluded that Robert was entitled to
an annulment of the marriage on the basis of fraud pursuant to section 6.107 of the Texas Family
Code.

Section 6.107 provides:

The court may grant an annulment of a marriage to a party to the marriage if:

(1) the other party used fraud, duress, or force to induce the petitioner to enter into the marriage;
and

(2) the petitioner has not voluntarily cohabited with the other party since learning of the fraud or
since being released from the duress or force.

Tex. Fam. Code Ann. § 6.107 (Vernon 2006). We were unable find any cases from Texas courts
specifically articulating the proof necessary to warrant annulling a marriage on the basis of fraud. (1)

Fraudulent inducement is a type of fraud. Tex. S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d
893, 914 (Tex. App.--Houston [1st Dist.] 2007, pet. denied). Fraudulent inducement is established
by proving that a false material representation was made that (1) was known to be false when it was
made, (2) was intended to be acted upon, (3) was relied upon, and (4) caused injury. Id. American
courts generally have held that marriages can be annulled on the basis of fraud only if the fraud
concerns an issue essential to the marriage. See, e.g., Elliott v. James, 977 P.2d 727, 730 (Alaska
1999) ("Decisions from other jurisdictions generally hold that marriages are presumed valid and can
be annulled on the basis of fraud only if the fraud concerns an issue essential to the marriage.");
Wolfe v. Wolfe, 389 N.E.2d 1143, 1144 (Ill. 1979) ("[A] marriage contract can be voided only if the
nature of the fraud itself affects the essentials of the marriage."); Guggenmos v. Guggenmos, 359
N.W.2d 87, 91 (Neb. 1984) ("While [exaggerations of accomplishments, character, and
circumstances] constitute a species of fraud, they do not afford a basis for destruction of the
marriage."); Attor v. Attor, 894 A.2d 83, 87-88 (N.J. Super. Ct. App. Div. 2006) ("The New Jersey
Courts have held that where a marriage has been consummated, the fraud alleged must be of an
extreme nature, that goes to one of the essentials of marriage."); Stegienko v. Stegienko, 295 N.W.
252, 254 (Mich. 1940) (noting fraud must be "of a nature wholly subversive of the true essence of
the marriage relationship" to support annulment of marriage).

Several courts have held that the nondisclosure of a prior marriage and divorce does not qualify as
an extreme enough fraud to annul a marriage. See Attor, 894 A.2d at 88 (citing Gerard v.
Distefano, 202 A.2d 220 (N.J. Super. Ct. App. Div. 1964) ("The nondisclosure of a prior marriage
and divorce is not such a fraud, for it in no way impedes the carrying out of the marital obligations
and does not go to the fundamentals of the relationship.")); Hess v. Pettigrew, 247 N.W.90, 95
(Mich. 1933) (holding concealment of prior marriage is generally not fraud justifying annulment).
However, at least one jurisdiction has held that the wife's concealment of five of her previous seven
marriages on the application for a marriage license was sufficient fraud to serve as a basis to annul
the marriage. Mayo v. Mayo, 617 S.E.2d 672, 674-75 (N.C. Ct. App. 2005).

Here, Robert testified that while he and Elaine were dating she told him that she had been married
twice. Just before their marriage, Elaine was compelled to reveal a third previous marriage to
Robert. At this time, Robert asked Elaine directly whether she had had any other prior marriages,
and she told him that she had not. Robert testified that if he had known Elaine had actually been
married eight times previously, he would not have married her. He testified that he did not discover
the other five marriages until after Elaine had moved out of the house, taken most of the household
furnishings, withdrawn $33,000 from their financial account, and filed for divorce while he was away
on a cruise.

Elaine testified that Robert knew about all of her previous marriages at the time that they got
married. She testified that she waited until he left on the cruise to move out of the house and file for
divorce because she was afraid that he might hurt her. However, there was no record of any
protective orders or incident reports of domestic violence presented at trial, and Elaine had made
similar allegations in two of her previous eight divorce proceedings.

The trial court, as the fact finder, was the sole judge of the credibility of these two witnesses. See
Wilson, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468. The findings of fact clearly show that the trial
court found Robert's testimony to be more credible than Elaine's. See id. In light of Robert's
testimony at trial, we conclude that there was legally sufficient evidence to support the trial court's
finding of Elaine's fraud. See Wilson, 168 S.W.3d at 810 (discussing legally sufficient evidence);
State Street Bank, 212 S.W.3d at 914 (discussing elements of fraudulent inducement). Therefore
the evidence was legally sufficient to support the trial court's annulment of the marriage based on
fraud.

Furthermore, in light of all the evidence, we cannot conclude that the trial court's findings are so
contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Arias,
265 S.W.3d at 468. Robert testified that he was unaware of five of Elaine's eight previous
marriages. This is certainly more significant than a spouse concealing only one previous marriage
and divorce and clearly goes to the essentials of the marriage. See Mayo, 617 S.E.2d at 674-75.
The only contrary evidence was Elaine's own testimony that Robert knew of all of her previous
marriages at the time that they married. This is not enough for us to conclude that the trial court's
findings were against the great weight of the evidence.

Elaine argues that section 6.107 should not have applied to her case because only section 6.109 of
the Texas Family Code allows a trial court to annul a marriage because of a concealed marriage,
and the terms of section 6.109 do not allow an annulment in this case. Section 6.109 allows a court
to annul a marriage when one spouse concealed a prior divorce that occurred within the 30-day
period preceding the date of the marriage ceremony. See Tex. Fam. Code Ann. § 6.109 (Vernon
2006). This statute is clearly not applicable to Robert and Elaine's situation, as Robert's petition for
annulment was based on the concealment of five previous marriages that occurred over a number
of years. Elaine argues that "'[c]oncealed divorces' that do not fall within the 30-day window of
[section 6.109] cannot constitute grounds for annulment merely by re-categorizing them as 'fraud'
under section 6.107." However, Robert did not "merely re-categorize" Elaine's prior marriages and
divorces. As we have already discussed, the extreme number of Elaine's concealed previous
marriages was sufficient to justify annulment based on Elaine's use of fraud "to induce [Robert] to
enter into the marriage" under section 6.107 of the Family Code.

We overrule Elaine's first issue.

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