Charles Fred Meshell v. Katherine Antoinette Lippi

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00212-CV
CHARLES FRED MESHELL APPELLANT
V.
KATHERINE ANTOINETTE LIPPI APPELLEE
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CV14-1368
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MEMORANDUM OPINION 1
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In three issues, Appellant Charles Fred Meshell challenges the trial court’s
finding that no informal or common law marriage existed between Appellee
Katherine Antoinette Lippi and Meshell. Because the trial court’s finding that no
1
See Tex. R. App. P. 47.4.
informal marriage existed was not against the great weight and preponderance of
the evidence, we affirm the trial court’s judgment.
Statement of Facts
Meshell and Lippi began a relationship in 2005, while he was separated
from but not divorced from his then wife. Lippi owned a number of rental
properties, and Meshell began helping her manage the properties.
Meshell testified that prior to his divorce, he and Lippi moved in together.
Lippi (who is from Hungary and whose first language is not English) testified that
they never lived together. She acknowledged, however, that she had previously
testified in an eviction proceeding that they lived together “for a temporary time”
while he was married. She later explained that they did not live together, but he
would routinely spend the night with her at her home. She stated that at some
point, Meshell lived in a triplex that contained the office and her family unit but
that he lived in his own separate unit, not in the same unit with her.
Meshell testified that they had a joint bank account; checks admitted into
evidence show both parties’ names. Lippi acknowledged that two of her
accounts were joint accounts with Meshell; she testified that “[she] put his name
on there [so she could] pay him” for his work on the properties because he did
not want to accept checks.
Meshell testified that in 2005, before his divorce, Lippi presented him with
a Common Law Partner Agreement. Lippi testified that she had not signed that
document and had not seen it before these trial proceedings.
2
Meshell testified that Lippi gave him 2.5 acres of land on which to build a
residence for the two of them and Lippi’s children. Lippi testified that she did not
give him the land and that she held a mortgage on the property.
Meshell began construction on the property in 2006. He divorced his wife
in March 2006. Lippi paid the filing fee for the divorce. She testified that she did
so because she owed him money for work he had done.
Meshell testified that in July 2006, Lippi presented him with an Informal
Marriage Agreement. The document stated that nine properties owned by Lippi
would be community property. Lippi testified that she and Meshell broke up in
2006 and that she did not sign the document.
On May 22, 2007, Lippi signed a notarized document stating that Meshell
was her husband and authorizing him to act on her behalf regarding her rental
properties. Lippi testified that she did so because Meshell asked her to do it and
told her that it was the only way he would take care of the properties. She
testified that for some cities, owners can do work on their own property, but
anyone else must have a license to do work on the property. Lippi had
previously signed a similar document in December 2005, before Meshell’s
divorce. She did so again in November 2010.
Meshell testified that he gave Lippi a wedding ring that she wore. Lippi
testified that although he gave her an engagement ring before they broke up, he
did not give her a wedding ring.
3
In 2009, Lippi and Meshell filled out applications for life insurance, each
listing the other as a spouse. Lippi testified that this was done at Meshell’s
request and that, at the time, she did not know what the word “spouse” meant.
Lippi also listed Meshell on her car insurance, and both insurance cards
listed the same P.O. Box as the address. Lippi testified that she also listed other
employees who drove the company car on her car insurance.
In February 2014, Lippi moved in with her elderly aunt and uncle to help
take care of them. In May 2014, Meshell injured himself doing work on Lippi’s
property and was unable to work, including doing work on the rental properties,
for six months. At some point, Meshell accused Lippi of impropriety with respect
to her aunt and uncle’s bank account. In July 2014, Lippi gave notice to her
renters that Meshell was not and never had been her husband and that they
should not give him their rental payments. Meshell filed for divorce from Lippi on
September 15, 2014.
A forensic document examiner testified for Meshell and stated that, in his
opinion, the signature on the Informal Marriage Agreement was Lippi’s signature.
A document examiner also testified for Lippi. That document examiner testified
that she saw indications that Lippi’s signature on the document might not be
genuine and that, with respect to Lippi’s signature on the 2005 Common Law
Partner Agreement, “the evidence very strongly show[ed] that the signature [was]
highly probably . . . some type of duplicate” of Lippi’s signature on another
document.
4
The trial court rendered judgment that no formal or informal marriage
existed between the parties and denied all further relief.
In its findings of fact, the trial court found that there was no agreement
between Meshell and Lippi to enter into an informal marriage, they did not live
together as husband and wife, they did not consistently conduct themselves as
husband and wife in public, they did not have a reputation in the community for
being married, and the three elements required for an informal marriage never
existed at the same time.
Discussion
Section 2.401 of the family code provides in relevant part that an informal
marriage may be proved by evidence that the parties agreed to be married, lived
together in Texas as a married couple, and represented to others in Texas that
they were married. 2 All three elements must coexist for an informal marriage to
occur. 3 A couple’s agreement to be married may be established by direct or
circumstantial evidence. 4 The element of representing to others that they were
married, or “holding out,” requires more than occasional references to each other
2
Tex. Fam. Code Ann. § 2.401(a)(2) (West 2006).
3
Garcia v. Garcia, No. 02-11-00276-CV, 2012 WL 3115763, at *3 (Tex.
App.—Fort Worth Aug. 2, 2012, no pet.) (mem. op.).
4
Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993).
5
as husband and wife. 5 The proponent of the informal marriage must prove all
three elements by a preponderance of the evidence. 6
A trial court’s findings of fact have the same force and dignity as a jury’s
answers to jury questions and are reviewable for legal and factual sufficiency of
the evidence to support them by the same standards. 7 When the appellate
record contains a reporter’s record, findings of fact on disputed issues are not
conclusive and may be challenged for sufficiency of the evidence. 8
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
credible evidence supporting the finding is so weak, or so contrary to the
overwhelming weight of all the evidence, that the answer should be set aside and
5
Smith v. Deneve, 285 S.W.3d 904, 909–10 (Tex. App.—Dallas 2009, no
pet.).
6
Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App.—El Paso 2015, no
pet.); Small v. McMaster, 352 S.W.3d 280, 282–83 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied).
7
Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Anderson v. City of
Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see also MBM Fin. Corp. v.
Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009).
8
Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003);
Allison v. Conglomerate Gas II, L.P., No. 02-13-00205-CV, 2015 WL 5106448, at
*6 (Tex. App.—Fort Worth Aug. 31, 2015, no pet.) (mem. op.).
6
a new trial ordered. 9 When conducting a factual sufficiency review, a court of
appeals must not merely substitute its judgment for that of the trier of fact. 10 The
trier of fact is the sole judge of the credibility of the witnesses and the weight to
be given to their testimony. 11
In his three issues, Meshell challenges the trial court’s findings that there
was no agreement, no holding out, and no cohabitation. Meshell offered some
evidence on all three elements. For example, he offered evidence that he and
Lippi had lived together (cohabitation), that Lippi had signed the Informal
Marriage Agreement (agreement to be married), and that she had signed
insurance forms and notarized documents referring to him as her husband
(holding out). But in addition to the evidence Meshell offered, the trial court also
heard opposing evidence indicating that none of the three elements were
satisfied. Lippi put on evidence that
• she and Meshell had not married and had not lived together as
husband and wife;
• she added him to her bank accounts so that she could pay him for
work he did on her rental properties because he did not want to be
paid by check;
9
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g);
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821,
823 (Tex. 1965).
10
Golden Eagle Archery, 116 S.W.3d 757, 761 (Tex. 2003).
11
Id.
7
• she did not sign the Common Law Partner Agreement and had not
even seen it before he filed the petition for divorce at issue;
• she did not give him land;
• she paid the filing fee for his divorce because she owed him money;
• she and Meshell broke up in 2006;
• she did not sign an Informal Marriage Agreement;
• she signed a notarized statement in 2007 stating that he was her
husband and authorizing him to act on her behalf because he told
her that it was the only way he would take care of the rental
properties;
• she had signed such a statement in 2005 while he was still married
and signed another in 2010;
• he never gave her a wedding ring;
• while she listed him as a spouse on an application for life insurance
at his request, Hungarian-born Lippi did not know what that word
meant;
• she named employees in addition to Meshell as drivers on her car
insurance;
• in July 2014, she gave notice to her tenants that he was not and
never had been her husband; and
• a document examiner testified that she saw signs that Lippi’s
signature on the Informal Marriage Agreement might not be genuine
and that the signature on the Common Law Partner Agreement was
“highly probably . . . some type of duplicate.”
In short, this was a he-said, she-said case. The trial judge as trier of fact
was the sole judge of the credibility of the witnesses and the weight to be given
to their testimony. 12 We cannot conclude that his findings on the three elements
12
See id.
8
of an informal marriage are against the great weight and preponderance of the
evidence. The trial court therefore did not abuse its discretion by denying
Meshell all relief in his live petition for divorce. 13 We overrule Meshell’s second
and third issues, and we overrule that part of his first issue generally challenging
the trial court’s finding that there was no informal marriage and specifically
challenging the more specific finding that there was no agreement to be married.
In the remainder of his first issue, Meshell, relying on section 4.104 of the
family code, complains that the trial court abused its discretion by not enforcing
the Informal Marriage Agreement. Section 4.104 governs marital agreements. 14
We have upheld the trial court’s finding that no marriage occurred here. Meshell
also claims that the agreement meets the requirements of section 5.46(b). That
section was repealed in 1997 and recodified in section 4.006. 15 To the extent
Meshell seeks enforcement of the alleged agreement as a premarital agreement,
such agreements are to be effective only upon marriage. 16 Again, we have
upheld the trial court’s finding that no marriage occurred here. Finally, to the
13
See Van Hoof v. Anderson, No. 07-14-00080-CV, 2016 WL 193172, at *7
(Tex. App.—Amarillo Jan. 14, 2016, no pet.); Garcia, 2012 WL 3115763, at *6.
14
Tex. Fam. Code Ann. § 4.104 (West 2006).
15
See id. § 4.006.
16
See Tex. Fam. Code Ann. § 4.001 (West 2006); 38 Aloysius A. Leopold,
Texas Practice Series: Marital Property and Homesteads § 12.2 (2015);
Christine Mercing, Comment, The Uniform Premarital Agreement Act: Survey of
Its Impact in Texas and Across the Nation, 42 Baylor L. Rev. 825, 844 (1990).
9
extent Meshell complains that the trial court did not enforce the alleged
agreement as an ordinary contract, we note that at Meshell’s request, the trial
court severed Meshell’s claims raised in the event no marriage was found—
claims based on quantum meruit, promissory estoppel, money had and received,
and fraud. Meshell did not plead an ordinary breach of contract. We overrule the
remainder of Meshell’s first issue.
Conclusion
Having overruled Meshell’s three issues, we affirm the trial court’s
judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DELIVERED: May 12, 2016
10