Tatum v. Tatum

OPINION

LANGDON, Justice.

The appellee, Betty Lou Tatum as plaintiff, alleging the essential elements of a common law marriage, initiated a suit for divorce against the appellant, Joe Tatum, as the defendant husband.

The appellee obtained jury findings on all of the elements of a common law marriage and the elements necessary for a divorce. The judgment based upon the verdict of the jury which was rendered by the court is the subject of this appeal.

We affirm.

Some of the pertinent facts involved in this case are summarized in the paragraphs next following.

The parties to this action began living together on August 11, 1961. At this time Betty Lou was still married to one Kenneth Miller from whom she was divorced on August 14, 1963. According to appellee’s testimony it was during the summer of 1963, after her divorce from Miller, that she and Joe Tatum began living with each other as husband and wife and that they continued to do so from that time until May of 1968. They both intended to be married from the time of her divorce from Miller.

Thereafter she helped Joe build the Fort Worth Elevator Company. She went to work and gave Joe Tatum the money to help buy a farm. They moved on to the farm in February of 1964, and generally began the undertaking of stocking and rebuilding the farm. They opened a joint checking account. They filed joint tax returns. The parties had joint checking accounts and opened joint bank accounts. Joe Tatum acquired a policy of life insurance on his life payable to Betty Lou Tatum as his wife. Joe Tatum referred to her, under oath, as his wife in a deposition taken while the case was pending in Johnson County. He paid ad valorem taxes on his farm in the name of Mrs. Dana M. Tatum. He signed the Property Settlement Agreement as her husband. He admitted her to St. Joseph’s Hospital in Fort Worth as his wife. He obtained a $100,000.00 life insurance policy payable jointly to his daughter and his wife. Joe Tatum admitted that Betty Lou put her separate earnings, while they were married, into the purchase of the farm.

It was generally known throughout the community and among their social friends that they were married. A social friend of theirs, Carol Olds, testified that Joe and Betty Lou held themselves out as being married. She knew them as man and wife. Joe and Betty were generally referred to as man and wife.

Based upon our review of the entire record in this cause we are of the opinion that the above summary, together with other testimony contained in the record and the various exhibits, conclusively show that, by the overwhelming weight and preponderance of direct evidence, the plaintiff established the three essential elements of a common law marriage.

It is undisputed that most of the transactions here involved occurred prior to the adoption of the new Family Code, Secs. 1.91 and 1.92, Vernon’s Ann.Civ.St. Prior to adoption of the Family Code the Supreme Court of Texas in Humphreys v. Humphreys, 364 S.W.2d 177, 178 (Tex.Sup., 1963) said:

“The elements of a common law marriage are: (1) an agreement presently to be husband and wife; (2) living together as husband and wife; and (3) holding each other out to the public as such. Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361, and authorities there cited. It is not essential that an express agreement be shown by direct evidence. A contract to marry may be implied or inferred from evidence which establishes the second and third elements of the marriage. Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682.”

The issues submitted by the trial court in this cause were based upon the same three elements of a common law marriage as those described by the Supreme Court in the Humphreys case, supra. At the time of the argument and in his brief the appellant’s chief complaint is directed against the third element, i. e., “holding each other out to the public as such.” This is untenable. There was ample evidence to support the finding of the jury as to this and all other elements of a common law marriage. Appellant’s fifth point is overruled.

A common law marriage is a legal and valid marriage. It can only be terminated by death, divorce or annulment. Because of this, the validity of the common law marriage which was consummated by the parties to this suit in the summer of 1963, could not be vitiated by subsequent acts of the parties in 1968 after some five years of marriage to one another. Evidence of these subsequent acts complained of by the appellant did not persuade the jury to side with him. It was not error for the court to refuse to submit issues or t® give instructions based upon such subsequent conduct. The appellant’s points one through four and point six, relating to the court’s refusal to submit various instructions and issues, are overruled.

By his seventh point of error the appellant contends that the court erred in excluding portions of testimony of the appel-lee on a preliminary hearing which was offered by him. The point is overruled for the reasons that there is no reference to or basis to support the point in the appellant’s amended motion for new trial. It is not the subject of any bill of exceptions appearing in the record. Third, most, if not all, of the excluded testimony was brought out during the trial and placed before the jury.

Appellant’s eighth point of error, complaining of the court’s charge as being unsupported by the pleadings, is overruled because it is not founded on any complaint contained in the appellant’s amended motion for new trial. That portion of point eight, relating to the court’s reference to August 14, 1963, the date of the appellee’s divorce from Miller, was undisputed in the evidence.

Appellant’s ninth point complains of the action of the court in admitting into evidence a judgment of annulment over the appellant’s objection that he was not a party to it. The appellant, by his pleadings and otherwise, was taking the position that the appellee and one Mervin Hutchens were, at the time of trial, married. In our opinion it was not error for the appellant to offer proof in rebuttal and for the court to admit it. If such was error it was harmless under the facts of this case. Rule 434, Texas Rules of Civil Procedure.

All points of error are overruled and the judgment of the trial court is affirmed.