Summary
In Almeida, Estrada filed a pre-trial emergency motion to dismiss a divorce action on grounds that he and Almeida were not married.
Summary of this case from In re M.C.M.Opinion
No. 04-05-00255-CV
Delivered and Filed: October 4, 2006.
Appeal from the County Court at Law No. 2, Webb County, Texas, Trial Court No. 2005-Cvg-000150-C3, Honorable Jesus Garza, Judge Presiding.
Reversed and Remanded.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Cindy Almeida filed an original petition for divorce from Antonio E. Estrada asserting that they had a common law marriage. Estrada filed an emergency motion to dismiss asserting that no common law marriage existed and, in the alternative, the parties were presumed not to be married because Almeida did not file her petition before the second anniversary of the date the parties ceased living together.
Estrada relied on section 2.401(b) of the Texas Family Code which provides as follows:
(b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.
Tex. Fam. Code Ann. § 2.401(b) (Vernon 2006).
At the hearing on the motion, which was held less than one month after the petition was filed, Almeida's attorney objected to the nature of the trial court proceeding, as follows:
MR. PENA: Your Honor, I would guess about ten minutes. They're basing their motion to dismiss on a statute of limitations, Your Honor. It's not really a statute of limitations — section 2.401 of the Family Code merely creates a presumption that there is no agreement to being married if the suit for a divorce is filed more than two years after the date of separation. It's not really a statute of limitations, Your Honor.
And further, the proper vehicle to dismiss a case would not be a motion to dismiss, Your Honor, but rather a motion for summary judgment. I don't think there's any statutory authority for a motion to dismiss, Your Honor.
* * * * * *
MR. PENA: And second, Your Honor, the proper procedure where, essentially, they're claiming that there is no genuine issue of material facts — the proper procedure would be a motion for a summary judgment, Your Honor, and there is no statutory [sic] referring for [sic] a motion to dismiss.
THE COURT: Anything else?
MR. NOTZON: Yes, Judge, I'm ready to call my first witness.
THE COURT: Do you have a response to what he's suggesting to the Court, that it should be a summary judgment procedure instead of a motion to dismiss? And that's assuming if, in fact, his interpretation of the law is correct.
MR. NOTZON: Well, I think the Court — this was an emergency motion it was set for today and, you know, once the Court hears the evidence it can make a decision and advise us — give us further guidance as to what the Court thinks should be done.
But I think this is proper — I've got case law that shows that chalk works [sic] have dismissed common-law actions after a hearing based upon the evidence and we have the evidence consistent with the case law to show to the Court and the case law to show to the Court.
THE COURT: That's fine. Go ahead and proceed.
Before the second day of the hearing, Almeida's attorney re-urged his objection to the nature of the proceeding and requested that the trial court allow Almeida to proceed to trial. At the conclusion of the hearing, the trial court stated, "Based on the totality of the evidence provided to the Court from testimony and affidavit, this Court is of the opinion that there was no marriage between Cindy Almeida and Antonio Estrada." The trial court subsequently entered a motion dismissing the case with prejudice based on its finding that no common law marriage existed. Almeida timely filed this appeal.
The issue of whether Estrada was the father of a child born to Almeida was severed into a separate cause; therefore, this court does not have jurisdiction to address the paternity issue in this appeal.
Estrada did not file an appellee's brief.
A dismissal is an inappropriate means of deciding the merits of a case; accordingly, the trial court reversibly erred in entering a dismissal order that adjudicated the merits of the case. See, e.g., In re C.M.C., 192 S.W.3d 866, 869 (Tex.App.-Texarkana 2006, no pet.); Beller v. Fry Roofing, Inc., No. 04-05-00159-CV, 2005 WL 3115828, at *2 (Tex.App.-San Antonio Nov. 23, 2005, no pet.); Patterson v. Herb Easley Motors, Inc., No. 2-04-351-CV, 2005 WL 2044671, at *4 (Tex.App.-Fort Worth Aug. 25, 2005. no pet.); Lane v. Baxter Healthcare Corp., 905 S.W.2d 39, 41 (Tex.App.-Houston [1st Dist.] 1995, no writ); Alvarado v. Magic Valley Elec. Co-op, Inc., 784 S.W.2d 729, 733 (Tex.App.-San Antonio 1990, writ denied); VanZandt v. Holmes, 689 S.W.2d 259, 261 (Tex.App.-Waco 1985, no writ). The trial court's order is reversed, and the cause is remanded to the trial court for a new trial.