Kathleen Edna Fusselman v. Leland George Fusselman ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-11-00435-CV
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KATHLEEN EDNA FUSSELMAN, Appellant
V.
LELAND GEORGE FUSSELMAN, Appellee
_______________________________________________________ ______________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 10-04-04180 CV
________________________________________________________ _____________
MEMORANDUM OPINION
In two issues, Kathleen Edna Fusselman appeals from a judgment denying
her claim that she and Leland George Fusselman established an informal marriage.
In issue one, Kathleen argues the great weight and preponderance of the evidence
shows that she and Leland had an informal marriage. In issue two, Kathleen argues
evidence obtained after the trial, a document that Leland filed with his employer,
required the trial court to grant her motion for new trial.
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Background
Kathleen filed a petition to divorce Leland in April 2010. Her petition
alleged that she and Leland were married in July 1996, and ceased living together
as husband and wife in April 2010. Leland answered, denying that he and Kathleen
had an existing marriage. Approximately four months later, Leland filed a motion
to dismiss, alleging that he and Kathleen stopped living together in 1994; and,
Leland claimed that he and Kathleen were divorced in July 1996, relying on a
divorce decree from Harris County. Leland’s motion also states that after he and
Kathleen divorced, they never established a common law marriage.
Several months later, Kathleen filed an amended petition, acknowledging the
1996 divorce. Kathleen’s amended petition alleges that she and Leland entered into
an informal or common law marriage between 1998 and the date they separated in
April 2010.
In April 2011, following a four-day bench trial, the trial court found
Kathleen’s material allegations of an informal marriage had not been proven by a
preponderance of the evidence, and also found that no informal or common law
marriage existed between Kathleen and Leland at any time after July 25, 1996. The
trial court entered a judgment in Leland’s favor, denying Kathleen’s claim that the
parties had an informal marriage.
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Subsequently, Kathleen filed a motion for new trial, alleging that the trial
court’s finding of no informal or common law marriage was against the greater
weight and preponderance of the evidence. Her motion for new trial also claims
that newly discovered evidence, a change of benefits form that Leland filed with
his employer, was evidence unavailable to her when the case was tried. According
to Kathleen, Leland represented in the form that he and Kathleen were married on
dates that support her claim that she and Leland established an informal marriage
after they divorced. The form, which Leland signed approximately eight days after
the bench trial began, reflects that Leland did request his employer to remove
Kathleen from his medical, dental, and health care benefits coverage based on their
“Divorce.” In explanation of his request, in a box marked “Other Reason” for
canceling coverage, Leland wrote “Ex Spouse No Longer Qualified as Dependent
Under IRS Guidelines.”
Standard of Review
An informal marriage may be proven by evidence that “the man and woman
agreed to be married and after the agreement they lived together in this state as
husband and wife and there represented to others that they were married.” Tex.
Fam. Code Ann. § 2.401(a)(2) (West 2006). The three elements of an informal
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marriage must exist at the same time. Nguyen v. Nguyen, 355 S.W.3d 82, 88 (Tex.
App.—Houston [1st Dist.] 2011, pet. denied).
In this case, the factual disputes between the parties were resolved in a
bench trial. “In a bench trial, the trial court acts as the fact-finder and is the sole
judge of the credibility of witnesses.” Id. “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.” Id.
“When a party attacks the factual sufficiency of an adverse finding on an
issue on which she has the burden of proof, she must demonstrate on appeal that
the adverse finding is against the great weight and preponderance of the evidence.”
Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In conducting our
review, we “must consider and weigh all of the evidence[.]” Id. An agreement to
be informally married may be established by direct or circumstantial evidence.
Russell v. Russell, 865 S.W.2d 929, 931 (Tex. 1993).
Arguments
In her first issue, Kathleen argues that the trial court’s finding that no
informal marriage existed between Leland and Kathleen is against the great weight
and preponderance of the evidence. According to Kathleen, the facts in her case are
substantially similar to the facts in Lewis v. Anderson. 173 S.W.3d 556, 563-64
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(Tex. App.—Dallas 2005, pet. denied). In Lewis, the parties continued to live
together as man and wife for twenty years after their divorce. Id. After the Lewis
jury found that an informal marriage existed, the husband appealed, asserting that
the evidence was legally and factually insufficient to support the verdict. Id. at 557.
Over the husband’s contention that the evidence supporting the verdict was so
weak that the finding was clearly wrong and unjust, the Dallas Court of Appeals
found the evidence legally and factually sufficient to support the jury’s finding that
the parties agreed to be married after their divorce. Id. at 563-64.
In Kathleen’s case, unlike the jury that decided Lewis, the trial court failed to
find in Kathleen’s favor regarding her claim that she and Leland established an
informal marriage. In contrast, in Lewis, the jury found the parties had an informal
marriage. Id. Because Kathleen failed to prevail on a claim, she must demonstrate
on appeal that the trial court’s findings are so contrary to the overwhelming weight
of all of the evidence as to be clearly wrong and manifestly unjust. See Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986). Due to the differences in the findings that
result in different standards of review on appeal, we conclude that Lewis is
distinguishable.
The record before us reflects that Kathleen and Leland were ceremonially
married in 1976. In 1977, they had a child together. Kathleen and Leland divorced
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in July 1996. Even though the record reflects the parties divorced in 1996, there
was also evidence establishing that Leland and Kathleen held themselves out as
married after their divorce, most notably when Leland insured Kathleen through
his employer and when they filed joint tax returns for the years 2002 through 2009.
Although Kathleen points to this evidence to support her claim of informal
marriage, Kathleen was also required to prove that she and Leland lived together
after their divorce and that she and Leland agreed to be married. See Tex. Fam.
Code Ann. § 2.401(a)(2).
The record reflects that the evidence regarding the elements of cohabitation
and agreement to be married were highly contested, as they depend largely on the
weight and credibility the factfinder decided to assign the evidence the parties
introduced during the trial. With respect to proving an agreement to be married,
Kathleen relied primarily on a brief conversation that she testified she had with
Leland outside a lawyer’s office in 2000 after they executed separate wills.
However, Leland testified the conversation at issue that Kathleen described having
with him never occurred. Leland also testified that he never agreed to be married to
Kathleen after they divorced. As the sole judge of the credibility of the witnesses,
the trial court could reasonably disregard Kathleen’s controverted testimony
regarding her claim that the parties mutually agreed to be married. See McGalliard
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v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (noting that in a bench trial the
trial court “may believe one witness and disbelieve others”).
Kathleen relies on other circumstantial evidence in support of the claim that
she and Leland established an informal marriage after their 1996 divorce. Leland’s
will, executed in 2000, contains a single reference to “my wife” in a survival
clause, although it does not expressly refer to Kathleen. Kathleen suggests that this
provision in Leland’s will is circumstantial evidence that would have supported a
finding that she and Leland agreed to marry. But, the will Kathleen executed the
same day before the same witnesses as the one Leland executed refers to Leland as
Kathleen’s “former husband.” Kathleen also identifies a will Leland signed in 2000
as circumstantial evidence that that trial court could have used to support a finding
of an informal marriage. In his 2000 will, Leland left his estate to Kathleen.
Kathleen also points to other documents Leland signed after their divorce, such as
joint income tax returns, insurance applications, and retirement plan documents,
which represent that Kathleen is Leland’s spouse. Nevertheless, the testimony from
the trial reflects that Leland denied that he ever agreed to marry Kathleen; he
attributed the representations in the various documents to his confusion over his
options in filling out forms or to miscommunications with his accountant.
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After reviewing all of the evidence, Kathleen’s claim that an agreement to
marry existed is not the only inference available from the evidence before the trial
court. While the various documents contain representations that are inconsistent
with the trial court’s determination regarding whether Leland agreed to marry after
the parties’ 1996 divorce, the trial court was free to accept Leland’s explanations
for the inconsistencies. Additionally, none of the documents on which Kathleen
relies state that Leland agreed to marry, and Leland testified that he made no such
agreement. When the evidence is conflicting, the factfinder is the sole judge of the
credibility of the evidence and the weight to be given the testimony of the
witnesses. See Lewis, 173 S.W.3d at 564. While another trial court might have
resolved the issue differently, the evidence that Leland agreed to marry after his
1996 divorce is not overwhelming and it was the trial court’s responsibility to
weigh the evidence and to assess the credibility of the witnesses in resolving the
dispute.
The trial court also rejected Kathleen’s claim that the parties lived together
after their 1996 divorce. Black’s Law Dictionary defines “cohabitation” as “[t]he
fact or state of living together, esp. as partners in life, usu. with the suggestion of
sexual relations[]” and “matrimonial cohabitation” as “[t]he living together of
husband and wife.” Black’s Law Dictionary 296 (9th ed. 2009). According to
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Kathleen, Leland moved back into the marital residence in 2000; but other
evidence introduced during the trial allowed the trial court to conclude that
Kathleen lived in the main dwelling while Leland stored his possessions in a
separate garage apartment while he was living in Trinidad. Also, the trial court was
free to accept Leland’s testimony that after 1994, he and Kathleen did not reside
under the same roof and that after returning to the United States in 2007, he lived
in a garage apartment next to Kathleen’s house. And, Kathleen admitted during the
trial that she and Leland did not live together in the house from 2000 through 2010.
There was also evidence showing that from 1998 through 2010, another man lived
in Kathleen’s house; according to Kathleen, the man was her former lover with
whom she did not currently have a sexual relationship. The trial court’s conclusion
that the parties did not live in the same household after their 1996 divorce is
supported by testimony admitted during trial.
Kathleen also argues that evidence showing that Leland continued to support
her after their 1996 divorce is circumstantial evidence of cohabitation. With
respect to support, there was substantial evidence that Leland continued to provide
financial support to Kathleen after they were divorced. However, the trial court
could have reasonably rejected Kathleen’s claim that providing support implied
cohabitation; instead, the trial court could have reasonably believed that Leland
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paid Kathleen’s bills because she was the mother of his daughter and because she
was responsible for maintaining the household where their daughter and
grandchildren lived. We also note that under the terms of their 1996 divorce
decree, Leland was required to pay the mortgage on Kathleen’s house and to pay
alimony.
Substantial evidence also supports the trial court’s inference that the parties
did not engage in sexual relations after their divorce. According to Kathleen, she
and Leland did not engage in sexual relations at any time after their divorce.
However, Kathleen argues this evidence should be disregarded because their
sexual relationship ceased several years before they were divorced. Kathleen
expressed the opinion that “nothing changed” after the divorce, but there was
evidence that circumstances had changed. Before they divorced, Leland slept in a
chair inside the main house; after the divorce, and after returning to Texas, Leland
slept in the garage apartment. The evidence is consistent with Leland’s claim that
the parties did not engage in sexual relations after their 1996 divorce.
Considering all of the evidence in the record, the trial court’s conclusion that
Kathleen and Leland were not living together as husband and wife after they
divorced is not against the great weight and preponderance of the evidence. After
reviewing all the evidence, we cannot say the evidence contrary to the trial court’s
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judgment is so overwhelming that its finding that no informal marriage existed is
clearly wrong and unjust. We overrule issue one.
In issue two, Kathleen contends the trial court erred in denying her motion
for new trial. Eight days after the trial began, Leland submitted an “Action Plan
Request For Change Form” to his employer. On the form, Leland identified a
“Divorce” as a qualifying event that occurred on April 11, 2011, explaining “Ex
Spouse No Longer Qualified as Dependent Under IRS Guidelines.” Kathleen
argues that Leland’s representation is a post-trial admission that an informal
marriage existed after their 1996 divorce.
Kathleen’s motion for new trial asserts that the form was newly discovered
evidence. The standard regarding newly discovered evidence requires:
A party seeking a new trial on grounds of newly-discovered evidence
must demonstrate to the trial court that (1) the evidence has come to
its knowledge since the trial, (2) its failure to discover the evidence
sooner was not due to lack of diligence, (3) the evidence is not
cumulative, and (4) the evidence is so material it would probably
produce a different result if a new trial were granted. Denial of a
motion for new trial is reviewed for abuse of discretion.
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010) (footnotes
omitted). The record from the trial reflects that Kathleen introduced several
documents dated after the 1996 divorce containing Leland’s representation to his
employer that he and Kathleen were married. Because the newly discovered
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evidence was cumulative of other evidence admitted during trial, we hold the trial
court’s denial of Kathleen’s motion for new trial was not an abuse of discretion.
See id. We overrule issue two, and we affirm the trial court’s judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on September 16, 2013
Opinion Delivered September 26, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.
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