Jesse Woodard v. Kathy Lynn Wleczyk ( 2005 )

Affirmed and Memorandum Opinion filed February 15, 2005

Affirmed and Memorandum Opinion filed February 15, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00078-CV

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JESSE WOODARD, Appellant

V.

KATHY LYNN WLECZYK, Appellee

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On Appeal from the County Court at Law No. 3 & Probate Court

Brazoria County, Texas

Trial Court Cause No. 26,362

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M E M O R A N D U M   O P I N I O N

Appellant Jesse Woodard appeals the jury=s finding that a common-law marriage existed between his deceased son and appellee, Kathy Lynn Wleczyk, claiming that the evidence is legally and factually insufficient to support the jury=s verdict.  We affirm.

I. Factual and Procedural Background

William Woodard died intestate in December 2002. Jesse Woodard, William=s father, applied to be appointed the administrator of William=s estate.  Kathy Lynn Wleczyk filed an application to determine heirship of William=s estate, asserting that she was William=s common-law wife.  After a trial, the probate court determined that William and appellee were not married.

Wleczyk moved for a new trial, claiming new evidence had been discovered.  The motion was granted, and in the second trial, a jury found William and Wleczyk were common-law married, and that Wleczyk was William=s surviving spouse. This appeal ensued.

In one issue, Woodard claims the evidence is legally and factually insufficient to support the jury=s verdict.

II. Discussion

A.        Preservation of Error

In order to preserve a complaint for appellate review, a party must make a timely request, motion, or objection, stating the specific grounds therefor, and obtain a ruling from the trial court.  Tex. R. App. P. 33.1(a); Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999).  A party=s legal sufficiency complaint may be preserved through (1) a motion for instructed verdict, (2) an objection to the submission of the issue to the jury, (3) a motion to disregard a jury=s answer to a vital fact issue, (4) a motion for judgment notwithstanding the verdict, or (5) a motion for new trial.  Cecil v. Smith, 804 S.W.2d 509, 510B11 (Tex. 1991); City of Houston v. Precast Structures, Inc., 60 S.W.3d 331, 335 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  A factual sufficiency complaint may only be preserved through a motion for new trial.  Tex. R. Civ. P. 324(b)(2); see Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004).  The record does not indicate appellant took the actions necessary to preserve his complaint. 

Appellant did not move for an instructed verdict and did not object to any portion of the jury charge.^[1]  Although appellant did request that the jury be polled after returning its verdict, he failed to move for a judgment notwithstanding that verdict.  In addition, appellant did not move for a new trial.  Therefore, appellant failed to bring his complaint before the trial court and obtain a ruling as required by the Rules of Appellate Procedure.  Tex. R. App. P. 33.1(a).  We conclude appellant has failed to preserve his complaint for our review.  Cecil, 804 S.W.2d at 510B11; Garza, 137 S.W.3d at 38.

Even assuming appellant had preserved error, the evidence is legally and factually sufficient to support the jury=s verdict.  When considering a legal sufficiency challenge, we view the evidence in the light most favorable to the finding of the disputed fact, disregarding all evidence and inferences to the contrary.  Kerr‑McGee Corp. v. Helton, 133 S.W.3d 245, 254 (Tex. 2004).  A legal sufficiency challenge must fail if more than a scintilla of evidence exists to support the challenged finding.  Wal‑Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003). Evidence is more than a scintilla if it furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact.  Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782B83 (Tex. 2001).

In reviewing a factual sufficiency challenge, we consider all of the evidence, not merely that supporting the verdict.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406B07 (Tex. 1998).  We will set aside the verdict only if it is so contrary to the overwhelming weight of evidence that it is clearly wrong and unjust.  Id. at 407.  A reviewing court may not, however, assess the credibility of witnesses or substitute its judgment for that of the jury, even if the evidence clearly supports a different result.  Id.

To establish a Texas common-law marriage, a party must prove (1) an agreement to be married, (2) cohabitation in Texas, and (3) representations to others that the couple is married.  Tex. Fam. Code Ann. ' 2.401(a)(2) (Vernon 2003); Mills v. Mest, 94 S.W.3d 72, 73 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).  A common‑law marriage exists when all three elements simultaneously occur.  Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.CHouston [1 Dist.] 1991, pet. denied).  Additionally, the agreement to be married may be proved by circumstantial evidence.  Mills, 94 S.W.3d at 74.

Here, the evidence supports all three elements. Wleczyk testified that in the fall of 2000, she and William decided to move in together.  She stated that soon thereafter, the two agreed to Alive together as a marriage, . . . in a marriage-type commitment.@^[2] When William applied for membership to the Lion=s Club of Brazoria, he listed Wleczyk as his spouse on the application.  Terry Brown, a member of the Lion=s Club, testified William introduced Wlecyzk as his wife to a large group of people at the Lion=s Club Christmas party.  This introduction, coupled with the fact that the parties resided at the same address, constitutes circumstantial evidence of an agreement to be married.  Viewing this evidence in the light most favorable to the jury=s finding that a common-law marriage existed, it is more than a scintilla and, thus, is legally sufficient to support the jury=s verdict.  Wal‑Mart, 121 S.W.3d at 739.

Reviewing the evidence for factual sufficiency, we conclude the jury=s finding is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.  While there may have been conflicting evidence as to the first and third elements, it is the function of the jury, not this Court, to resolve evidentiary conflicts.  See McGalliard

v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).  Accordingly, appellant=s sufficiency challenges are overruled, and we affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed February 15, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

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^[1]  When asked by the trial court, both parties responded that they had no objections to the jury charge.

^[2]  It is undisputed that William and Wleczyk lived at the same address.