in the Interest of J.G.S., a Child ( 2019 )

AFFIRM; and Opinion Filed January 28, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00452-CV
IN THE INTEREST OF J.G.S., A CHILD
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. FA-16-0898
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Nowell
Opinion by Justice Reichek
In this appeal, Mother challenges the trial court’s determination that she was not informally
married to Father. After reviewing the record and applicable law, we affirm the trial court’s order.
Factual Background
Mother and Father are the parents of two children: six year old J.G.S and twenty-one year
old A.S. On May 19, 2016, Mother filed a petition for divorce asserting she and Father were
married “on or about 1996 and ceased to live together as a married couple on or about February
14, 2016.” Father answered and asserted a verified plea stating Mother was not entitled to recover
in the capacity in which she sued, and Father was not liable in the capacity in which he was sued,
“because there is no existing marriage between the parties.” The issue of whether Mother and
Father were married pertained primarily to whether Mother had a community property interest in
the house in which she and Father had resided.
A temporary orders hearing was conducted on June 15. When Mother began to testify at
the hearing about her purported marriage to Father, the trial judge indicated he did not want to
address the matter of whether an informal marriage existed between the parties at that time. The
focus of the hearing was temporary conservatorship of the parties’ minor child, payment of child
support, and the use and possession of the parties’ property. The trial court signed temporary
orders on these matters on July 18.
A final hearing in the case was conducted on November 27, 2017. Four witnesses were
called to testify: Mother; Father; Mother’s oldest son, Michael; and Father’s father, Luis. Mother
testified that, although they did not have a marriage certificate, in her mind she and Father agreed
to be informally married when they moved in together in March 1996. She stated neither of them
proposed to the other, but “[w]e just said that we’re going to be together and so we started being
together.” She further stated Father would always introduce her to his family and friends as his
wife. Mother conceded that, every year from 1996 to 2016, she filed her tax return as a single
person. She further conceded that the deed to the house she and Father had been living in since
2003 did not name her as one of the owners. Instead the original warranty deed named Father and
Luis as the grantees.
Michael testified he believed Mother and Father were married because “it’s a relationship”
and they had two children together. He admitted, however, he had no knowledge of any agreement
between Mother and Father to be married. When asked to specify occasions he could recall Mother
and Father holding themselves out as a married couple, he stated that, during his sister’s
Quinceañera, he didn’t interact much with Father, “but I knew he was with my mother.” Michael
later testified Father once introduced him as his wife’s son.
Father acknowledged he and Mother had been living together for more than twenty years
and had two children together. But he stated they never agreed to be married and Mother never
–2–
introduced him to anyone as her husband. Father further stated he stayed with Mother only because
Luis told him to and he did not want A.S. to be raised by a stepfather. Father confirmed he and
Mother never filed a tax return together as a married couple.
Luis testified Mother and Father lived with him and his wife for three years before they
moved into the house next door in 2003. Because of their proximity, Luis saw Mother almost
daily. According to Luis, Mother and Father never agreed to be married and his son never held
himself out as being married to Mother. Luis stated Mother told him she and Father “don’t have
any commitment” and, because she did not have a husband, she was the one in charge of things at
the house.
After hearing the evidence, the trial judge stated he had “great concerns” regarding Father’s
credibility. He concluded, however, that Mother failed to meet her burden to show she and Father
had agreed to be informally married. The trial court signed an Order in Suit Affecting the Parent-
Child Relationship appointing Mother and Father joint managing conservators of J.G.S. In the
order, the court stated, among other things, that it found Mother and Father “were never married
formally or informally” and ordered the house in which they had been living was Father’s separate
property. Mother brought this appeal.
Analysis
A. Standard of Review
In her sole issue, Mother contends the trial court erred in concluding she and Father were
not informally married. Mother characterizes the trial court’s error as an abuse of discretion.
Abuse of discretion is not the correct standard of review to be applied in this case, however. When
a case is tried to the court, we review the trial court’s findings of fact in the same manner as a
jury’s answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.
1991); In re Estate of Walker, No. 02-08-00371-CV, 2009 WL 1996301, at *2 (Tex. App.—Fort
–3–
Worth July 9, 2009, no pet.) (mem. op.). Such findings are reviewable for legal and factual
sufficiency of the evidence. Anderson, 806 S.W.2d at 794. We liberally construe Mother’s
arguments in this appeal as challenging the factual sufficiency of the evidence to support the trial
court’s ruling. In reviewing for factual sufficiency, we weigh all of the evidence in the record and
overturn a finding only if it is so against the great weight and preponderance of the evidence as to
be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).
B. Informal Marriage
An informal marriage may be proven by evidence the couple agreed to be married and,
after the agreement, they lived together in this state as spouses and represented to others that they
were married. TEX. FAM. CODE ANN. § 2.401(a). An agreement to be informally married may be
established by direct or circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex.
1993). Evidence of cohabitation and holding out the other party as one’s spouse may constitute
some evidence of an agreement to be married depending on the facts of the case. Assoun v.
Gustafson, 493 S.W.3d 156, 160 (Tex. App.—Dallas 2016, pet. denied). Because in modern
society it is difficult to infer an agreement to be married from cohabitation, evidence of “holding
out” must be particularly convincing to be probative of such an agreement. Id. Holding out
requires more than occasional references to each other as “wife” or “husband.” Smith v. Deneve,
285 S.W.3d 904, 910 (Tex. App.—Dallas 2009, no pet.). A couple’s reputation in the community
as being married is a significant factor in determining the holding out element. Id.
Mother argues the facts in this case that favor informal marriage include the length of her
relationship with Father, their cohabitation, their children together, and the trial court’s concerns
regarding Father’s credibility. None of these facts go to the critical issue of whether Mother and
Father held themselves out as a married couple. Although Mother testified Father “always”
introduced her as his wife, she provided no evidence of her and Father’s reputation in the
–4–
community as being married.1 Mother’s son Michael testified regarding only one incident when
Father referred to Mother as his “wife” and he admitted he never heard Mother and Father discuss
an agreement to be married. Michael’s belief that Mother and Father were married was based
solely on the fact that they were in a relationship and had children together. In contrast, both
Father and Luis testified Mother and Father never held themselves out as a married couple and
Luis stated Mother affirmatively denied she and Father were married.
The evidence presented to the trial court to establish the marriage was, at best, conflicting.
Although the trial judge stated he doubted Father’s testimony on some issues, he voiced no similar
concerns about Luis’s testimony that Father never represented to others he was married to Mother
and that Mother represented to him that she and Father had no commitment to each other. Where
the evidence is conflicting about the existence of an informal marriage, the conflict must be
resolved by the factfinder. See Walker, 2009 WL 1996301, at *4.
Mother bore the burden of proof to show by a preponderance of the evidence that she and
Father were informally married. See Small v. McMaster, 352 S.W.3d 280, 282–83 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied). After reviewing all the evidence in the record, we cannot
say the trial court’s finding that Mother failed to meet this burden is so against the great weight
and preponderance of the evidence as to be clearly wrong and unjust. See Walker, 2009 WL
1996301, at *4. We resolve Mother’s sole issue against her.
1
Attached to Mother’s brief are several affidavits that appear to relate to Mother and Father’s reputation in the
community as being married. The affidavits show on their face they were not filed in the trial court, but instead were
created only for submission on appeal. We cannot consider on appeal matters not properly presented to the trial court
and such matters cannot be incorporated into the appellate record by attaching them to a brief. See Sabine Offshore
Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (per curiam) (appellate court cannot consider
affidavits not part of trial court record in determining merits of appeal).
–5–
We affirm the trial court’s order.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
180452F.P05
–6–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF J.G.S., A CHILD On Appeal from the 15th Judicial District
Court, Grayson County, Texas
No. 05-18-00452-CV Trial Court Cause No. FA-16-0898.
Opinion delivered by Justice Reichek.
Justices Schenck and Nowell participating.
In accordance with this Court’s opinion of this date, the order of the trial court is
AFFIRMED.
It is ORDERED that appellee Juan Serrano recover his costs of this appeal from
appellant Martha Veleta-Dominguez.
Judgment entered this 28th day of January, 2019.
–7–