in the Matter of the Marriage of Charles Inness Thrash, an Incapacitated Adult.

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-19-00236-CV
IN THE MATTER OF THE MARRIAGE OF Charles Inness THRASH,
an Incapacitated Adult
From the Probate Court No. 1, Bexar County, Texas
Trial Court No. 2017-PC-2912-A
Honorable Oscar J. Kazen, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: April 29, 2020
MOTION TO STAY DENIED AS MOOT; AFFIRMED
In a guardianship proceeding, the trial court found Charles Inness Thrash lacked the
capacity to care for himself, contract, or marry, and it appointed guardians of his estate and person.
Without the trial court’s or guardians’ knowledge or consent, Thrash married Laura Martinez. In
an ancillary proceeding to the guardianship case, Thrash’s guardians petitioned the court to annul
the marriage, which it did. Laura, and her daughter Brittany, appeal the annulment order, move
this court to stay proceedings below pending disposition of this appeal, and argue the trial court
abused its discretion in annulling the marriage. We dismiss Brittany’s appeal for want of
jurisdiction, deny the motion to stay as moot, and affirm the trial court’s order.
04-19-00236-CV
BACKGROUND
The great majority of the facts underlying this case are set forth in our December 4, 2019
opinion disposing of the guardianship appeal. 1 We repeat only a few of those facts here, and we
recite additional facts pertinent to this appeal of the annulment order.
In the guardianship case in Bexar County, on January 29, 2019, the trial court ruled on
competing motions for new trial. It again determined that Thrash was “totally without capacity to
care for himself, . . . to contract, and to marry.” It appointed Mary C. Werner as guardian of
Thrash’s person and Tonya M. Barina as guardian of Thrash’s estate. On February 2, 2019, Laura
and Thrash obtained a marriage license from DeWitt County—without advising the court or the
guardians. On March 4, 2019, Laura and Thrash were married in a ceremony in DeWitt County.
One week later, in the ancillary proceeding underlying this appeal, Werner, as guardian of
Thrash’s person, joined by Barina, as guardian of Thrash’s estate, petitioned to annul the marriage.
After a hearing, the trial court granted the petition and annulled the marriage.
Laura and Brittany appeal the trial court’s order. In three issues, they argue that the trial
court abused its discretion by (1) annulling the marriage without an evidentiary hearing, (2)
rendering an order not supported by legally or factually sufficient evidence, and (3) denying Thrash
due process and equal protection by failing to appoint Thrash a guardian ad litem in the annulment
proceeding. Laura and Brittany also moved this court to stay the proceedings in the trial court
until this appeal is resolved.
Before we address the issues or the motion to stay, we first determine whether Brittany has
standing to appeal.
1
In re Guardianship of Thrash, No. 04-19-00104-CV, 2019 WL 6499225 (Tex. App.—San Antonio Dec. 4, 2019,
pet. denied) (mem. op.).
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BRITTANY’S STANDING
In their brief, the guardians argue Brittany lacks standing in this appeal because she was
not a party to the annulment proceeding and she did not otherwise intervene.
A. Standing
“Subject matter jurisdiction is an issue that may be raised for the first time on appeal . . . .”
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); accord Caroll v.
Caroll, 304 S.W.3d 366, 367 (Tex. 2010). “[A]ppellate standing is typically afforded ‘only to
parties of record,’ Gunn v. Cavanaugh, 391 S.W.2d 723, 724–725 (Tex. 1965)[, and] an appeal
filed by an improper party must be dismissed.” State v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015).
We review the question of standing de novo. See id.; Estate of Matthews III, 510 S.W.3d 106, 113
(Tex. App.—San Antonio 2016, pet. denied).
B. Discussion
Brittany argues she “should have standing . . . as a person interested in [Thrash]” under
Rule 173.2, see TEX. R. CIV. P. 173.2, but she does not show that she made that argument to the
trial court, contra TEX. R. APP. P. 33.1(a); Coleman v. Klockner & Co. AG, 180 S.W.3d 577, 587
(Tex. App.—Houston [14th Dist.] 2005, no pet.) (citing Larsen v. FDIC/Manager Fund, 835
S.W.2d 66, 74 (Tex. 1992)). The record shows that Brittany was not named in the petition for
annulment, she did not file an answer, she did not intervene, and at the hearing on the petition, she
did not appear or participate.
Brittany does not point us to any part of the record that shows she was a party in the
underlying annulment proceeding, and “a party may not intervene post-judgment unless the trial
court first sets aside the judgment,” Naylor, 466 S.W.3d at 788. The trial court has not set aside
its judgment, and we necessarily conclude Brittany lacks appellate standing in this appeal. See id.
We dismiss Brittany’s appeal for want of jurisdiction.
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We turn now to Laura’s challenges to the trial court’s order granting the petition to annul
the marriage.
PETITION TO ANNUL THE MARRIAGE
A. Annulment for Mental Incapacity
The Family Code allows a guardian to petition the court to annul the marriage of a ward.
(a) The court may grant an annulment of a marriage to a party to the marriage on
the suit of the party or the party’s guardian or next friend, if the court finds it to be
in the party’s best interest to be represented by a guardian or next friend, if:
(1) at the time of the marriage the petitioner did not have the mental capacity to
consent to marriage or to understand the nature of the marriage ceremony
because of a mental disease or defect; and
(2) since the marriage ceremony, the petitioner has not voluntarily cohabited
with the other party during a period when the petitioner possessed the mental
capacity to recognize the marriage relationship.
TEX. FAM. CODE ANN. § 6.108(a).
Under the statute, the trial court has discretion to grant or deny an annulment. See id. (“The
court may grant an annulment [under certain conditions].” (emphasis added)). The trial court is
the factfinder. Id. (authorizing the trial court to find facts: “if the court finds”); cf. Desta v.
Anyaoha, 371 S.W.3d 596, 599 (Tex. App.—Dallas 2012, no pet.) (citing TEX. FAM. CODE ANN.
§ 6.107) (recognizing, for another annulment statute, that the trial court is the factfinder). As the
factfinder, the trial court becomes “the sole judge[] of the credibility of the witnesses and the
weight to give their testimony.” City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); accord
Desta, 371 S.W.3d at 599.
B. Standards of Review
We review the trial court’s order granting a petition for annulment for an abuse of
discretion. Cf. Kingery v. Hintz, 124 S.W.3d 875, 879 (Tex. App.—Houston [14th Dist.] 2003, no
pet.). “Under an abuse of discretion standard, challenges to the legal and factual sufficiency of the
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evidence are not independent grounds of error; rather, they are simply factors in assessing whether
the trial court abused its discretion.” Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex. App.—San
Antonio 2007, no pet.); accord Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin
2006, pet. denied).
“Because of the overlap between the abuse-of-discretion and sufficiency-of-the-evidence
standards of review, this court engages in a two-pronged inquiry to determine whether the trial
court (1) had sufficient information on which to exercise its discretion and (2) erred in its
application of that discretion.” Day v. Day, 452 S.W.3d 430, 433 (Tex. App.—Houston [1st Dist.]
2014, pet. denied); accord Gardner, 229 S.W.3d at 751. For the first prong, we use traditional
legal and factual sufficiency standards. Day, 452 S.W.3d at 433; Gardner, 229 S.W.3d at 751.
1. Legal Sufficiency
“When a party attacks the legal sufficiency of an adverse finding on an issue on which it
did not have the burden of proof, it must demonstrate on appeal that no evidence supports the
adverse finding.” Graham Cent. Station, Inc. v. Peña, 442 S.W.3d 261, 263 (Tex. 2014) (per
curiam) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)). We review the evidence
in the light most favorable to the verdict, “credit[ing] favorable evidence if reasonable jurors could,
and disregard[ing] contrary evidence unless reasonable jurors could not.” City of Keller, 168
S.W.3d at 822, 827; accord Graham Cent. Station, 442 S.W.3d at 263.
But for a bench trial, the court is “the sole judge[] of the credibility of the witnesses and
the weight to give their testimony,” and “[i]t is the province of the [factfinder] to resolve conflicts
in the evidence.” City of Keller, 168 S.W.3d at 819–20. “If the evidence at trial would enable
reasonable and fair-minded people to differ in their conclusions, then [the factfinder] must be
allowed to do so,” and we may not substitute our judgment for that of the factfinder’s. Id. at 822.
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2. Factual Sufficiency
When a party attacks the factual sufficiency of the evidence pertaining to a finding on
which the party did not have the burden of proof, the party must “demonstrate there is insufficient
evidence to support the adverse finding.” Flying J Inc. v. Meda, Inc., 373 S.W.3d 680, 690–91
(Tex. App.—San Antonio 2012, no pet.) (citing Croucher, 660 S.W.2d at 58). We consider all the
evidence, but we will not reverse the judgment unless “‘the evidence which supports the
[factfinder’s] finding is so weak as to [make the finding] clearly wrong and manifestly unjust.’”
Id. (quoting Star Enter. v. Marze, 61 S.W.3d 449, 462 (Tex. App.—San Antonio 2001, pet.
denied)); see Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
For the second prong, we determine “whether the trial court acted without reference to any
guiding rules or principles; in other words, whether the [decision] was arbitrary or unreasonable.”
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); see Gardner, 229 S.W.3d at
751.
NO EVIDENTIARY HEARING
In her first issue, Laura argues the trial court abused its discretion by ruling on the
guardians’ petition to annul the marriage because it did not hold an evidentiary hearing before
rendering its decision.
A. Error Preservation
The guardians contend Laura waived her evidentiary hearing argument, but the record
indicates otherwise. After the trial court granted the guardians’ petition and annulled the marriage,
Laura objected “to not being allowed to produce evidence at a final hearing.” The trial court
explained why it disagreed and reiterated that the annulment order was final. We conclude Laura
preserved her complaint for appeal. See TEX. R. APP. P. 33.1(a); Seim v. Allstate Tex. Lloyds, 551
S.W.3d 161, 164, 166 (Tex. 2018) (per curiam); In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).
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B. Construing the Statute
But on appeal, Laura does not cite any statute, rule, or case law that the trial court allegedly
violated by ruling on the petition based on the evidence in the record. We note that Family Code
section 6.108 controls, we construe it de novo, see Lippincott v. Whisenhunt, 462 S.W.3d 507, 509
(Tex. 2015) (per curiam), and we note its plain language gives the trial court discretion to grant an
annulment of a marriage if it finds certain conditions, see TEX. FAM. CODE ANN. § 6.108; Kerckhoff
v. Kerckhoff, 805 S.W.2d 937, 939 (Tex. App.—San Antonio 1991, no writ) (citing an earlier
version of the statute).
The annulment statute’s plain language does not require the trial court to hold an
evidentiary hearing before it grants an annulment. See TEX. FAM. CODE ANN. § 6.108; cf.
Lippincott, 462 S.W.3d at 509 (“The plain language of the statute imposes no requirement that the
form of the communication be public. Had the Legislature intended to limit the Act to publicly
communicated speech, it could have easily added language to that effect.”).
And as Laura points out, the trial court’s order expressly states it considered all the
“pleadings on file in [the annulment] cause and in the underlying guardianship proceeding,
including all exhibits thereto [and the] testimony and other evidence submitted in the guardianship
proceeding.” Laura is free to challenge the sufficiency of the evidence supporting the trial court’s
order—which she has. Cf. Desta v. Anyaoha, 371 S.W.3d 596, 598 (Tex. App.—Dallas 2012, no
pet.) (sufficiency challenges in annulment). But there is no statutory requirement to hold an
evidentiary hearing before granting an annulment, and the statute gives the trial court discretion to
grant an annulment. See TEX. FAM. CODE ANN. § 6.108; cf. Lippincott, 462 S.W.3d at 509.
Based on this record and the issue as presented, we cannot conclude that the trial court
abused its discretion in granting an annulment without holding an evidentiary hearing. See
Worford, 801 S.W.2d at 109; Desta, 371 S.W.3d at 598. We overrule Laura’s first issue.
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LEGAL, FACTUAL SUFFICIENCY CHALLENGES
In her second issue, Laura argues the trial court’s March 21, 2019 order annulling the
marriage was not supported by legally or factually sufficient evidence. To grant an annulment,
the trial court had to find evidence supporting the statute’s essential elements, see TEX. FAM. CODE
ANN. § 6.108, and we review the evidence of each using the applicable standards of review.
A. No Capacity at Time of Marriage
For the first element, the guardians had to establish that “at the time of the marriage
[Thrash] did not have the mental capacity to consent to marriage or to understand the nature of the
marriage ceremony because of a mental disease or defect.” See TEX. FAM. CODE ANN.
§ 6.108(a)(1); Kerckhoff, 805 S.W.2d at 939 (citing an earlier version of the statute).
Laura asserts she and Thrash exchanged vows in a ceremonial marriage on March 4, 2019.
Before that date, in the guardianship case, the trial court signed orders on November 15, 2018, and
January 29, 2019, regarding Thrash’s capacity. In each guardianship case order, the trial court
determined that Thrash was “totally without capacity to care for himself, , . . . to contract, and to
marry,” and each order expressly states “the Ward shall not retain the right to marry.”
Laura admits she understood the January 29, 2019 order was final before the ceremonial
marriage took place, but she insists the trial court’s finding of incapacity was merely a rebuttable
presumption. See In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). Yet she does not identify any
evidence or authority to show that she overcame that presumption, such as that the finding had
been withdrawn or otherwise successfully challenged, before the date of the ceremonial marriage.
See, e.g., TEX. EST. CODE ANN. § 1202.051 (allowing “a ward or any person interested in the
ward’s welfare [to] file a written application with the court for an order . . . finding that the ward
is no longer an incapacitated person and ordering the settlement and closing of the guardianship”);
In re Guardianship of Pers. & Estate of Tonner, 513 S.W.3d 496, 499 (Tex. 2016) (per curiam).
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But see TEX. EST. CODE ANN. § 1202.055 (prohibiting, generally, a person from applying to
modify “a ward’s guardianship before the first anniversary of the date of the hearing on the last
preceding application”).
Laura does not argue, the guardians deny, and we have found no evidence that, the
guardians consented to Thrash’s marriage. We conclude that the evidence that “at the time of the
marriage [Thrash] did not have the mental capacity to consent to marriage or to understand the
nature of the marriage ceremony because of a mental disease or defect” is both legally and factually
sufficient. See TEX. FAM. CODE ANN. § 6.108(a)(1) (capacity to marry); City of Keller, 168 S.W.3d
at 827 (legal sufficiency); Flying J, 373 S.W.3d at 690–91 (factual sufficiency).
B. No Capacity to Recognize Marriage
For the second element, the guardians had to establish that “since the marriage ceremony,
[Thrash] has not voluntarily cohabited with [Laura] during a period when [Thrash] possessed the
mental capacity to recognize the marriage relationship.” See TEX. FAM. CODE ANN. § 6.108(a)(2);
Kerckhoff, 805 S.W.2d at 939. The guardians assert neither Thrash, Laura, nor any other interested
person has applied to terminate the guardianship since the date of the marriage, and Thrash’s
incapacity remains in legal effect based on the trial court’s January 29, 2019 order. 2
Again, Laura does not point us to any authority to show that, by order of a competent court,
Thrash’s capacity to marry was reinstated, see, e.g., TEX. EST. CODE ANN. § 1202.051(a)(1), and
he voluntarily cohabited with Laura such that he was able to recognize the marriage relationship,
see TEX. FAM. CODE ANN. § 6.108(a)(2). Further, Laura does not assert, and there is no evidence
that, Thrash obtained permission from his guardians to recognize the ceremonial marriage.
2
In In re Guardianship of Thrash, No. 04-19-00104-CV, 2019 WL 6499225 (Tex. App.—San Antonio Dec. 4, 2019,
pet. denied) (mem. op.), we rejected Laura’s challenge to Thrash’s guardianship and affirmed the trial court’s
guardianship order.
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We conclude that the evidence showing that “since the marriage ceremony, [Thrash] has
not voluntarily cohabited with [Laura] during a period when [Thrash] possessed the mental
capacity to recognize the marriage relationship” is legally and factually sufficient. See TEX. FAM.
CODE ANN. § 6.108(a)(2) (capacity to recognize marriage); City of Keller, 168 S.W.3d at 827 (legal
sufficiency); Flying J, 373 S.W.3d at 690–91 (factual sufficiency).
Having determined the evidence for each essential element of the annulment statute was
legally and factually sufficient, we conclude the evidence supports the trial court’s order to annul
the marriage.
C. Common-Law Marriage
As a subpart of her sufficiency argument, Laura argues for the first time on appeal that she
and Thrash had a common-law marriage that predated the trial court’s November 15, 2018 and
January 29, 2019 orders, and the trial court had no authority to annul and set aside their common-
law marriage.
1. Laura’s Arguments
Laura argues the evidence shows that she and Thrash were married by common law
because they proved each element. See TEX. FAM. CODE ANN. § 2.401 (elements of informal
marriage); Russell v. Russell, 865 S.W.2d 929, 931 (Tex. 1993) (citing a previous version). She
argues it was the guardian’s burden to show her common-law marriage was voidable because the
common-law marriage “issue was raised in the trial court.”
2. Guardians’ Arguments
The guardians insist Laura did not raise the common-law marriage issue to the trial court
in the annulment hearing, and she cannot raise the issue for the first time on appeal.
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3. Discussion
One week after Laura and Thrash exchanged vows in a ceremonial marriage, the guardians
filed an original petition to annul the marriage. The cause was filed in the trial court with exclusive
jurisdiction, and it was given a separate cause number: 2017-PC-2912-A.
At the beginning of the hearing on the guardians’ petition to annul the marriage, the trial
court called for announcements in the annulment proceeding and noted that party status in the
guardianship proceeding did not, of itself, confer party status on anyone in the annulment
proceeding. The trial court recapped the relevant portions of the guardianship proceedings and
then repeatedly stated that the parties “are not here on the guardianship itself.” The trial court
emphasized that “we’re about to begin this hearing as it relates to the marriage, which is an
ancillary action. . . . We’re not here for any of those [guardianship] issues, despite all the motions.”
The trial court reiterated that “it is very clear we are not talking about the guardianship in this
hearing today.” The guardians began presenting their case by noting that the proceeding was for
2017-PC-2912-A, an ancillary but separate cause from the guardianship proceeding.
In their petition and arguments to annul the marriage, the guardians specifically and
expressly challenged “the validity of the marriage.” To defend the validity of the marriage, Laura
had the opportunity—and the burden—to raise any relevant arguments to defend the marriage.
In Laura’s March 14, 2019 original answer to the guardian’s petition, Laura did not argue
she and Thrash had already established a common-law marriage or otherwise raise a preexisting
common-law marriage defense. At the hearing on the annulment petition, Laura argued grounds
to support the validity of her ceremonial marriage, but she said nothing to raise a common-law
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marriage defensive theory. On appeal, Laura does not point to any part of the record to show she
raised a common-law marriage issue to defend against an annulment, and we have found none. 3
We necessarily conclude Laura failed to raise a common-law argument to the trial court in
the annulment proceeding, and “absent fundamental error, [we have] no discretion to reverse an
otherwise error-free judgment based on a new argument raised for the first time on appeal.” See
Coleman v. Klockner & Co. AG, 180 S.W.3d 577, 587 (Tex. App.—Houston [14th Dist.] 2005, no
pet.) (citing Larsen v. FDIC/Manager Fund, 835 S.W.2d 66, 74 (Tex. 1992)).
Given the evidence was legally and factually sufficient to support the trial court’s findings,
and Laura failed to raise her common-law marriage defense argument to the trial court, we cannot
conclude the trial court abused its discretion in ordering the marriage annulled. See Worford, 801
S.W.2d at 109; Gardner, 229 S.W.3d at 751.
We overrule Laura’s second issue.
DUE PROCESS, EQUAL PROTECTION RIGHTS
In her third issue, Laura argues the trial court denied Thrash his due process and equal
protection rights because it did not appoint a guardian ad litem for him as required by Estates Code
section 1203.051(b). See TEX. EST. CODE ANN. § 1203.051 (removing a guardian). The guardians
respond that section 1203.051(b) does not apply to an annulment proceeding and the trial court
had no obligation to appoint a guardian ad litem. See id.; In re Webster, No. 05-15-00945-CV,
2015 WL 4722306, at *1 (Tex. App.—Dallas Aug. 10, 2015, orig. proceeding) (mem. op.).
3
In her answer, Laura quoted from a letter from Dr. Manuel Naron, M.D., which she attached to her answer, regarding
Thrash’s mental capacity. But she did not quote from, cite, or include in any argument Dr. Naron’s comment referring
to Laura as Thrash’s “common-law wife.” Similarly, in Laura’s other pleadings incorporated by reference, Laura
refers to herself and Thrash as “life partners,” with a “long-standing romantic and professional relationship,” but none
of her pleadings address the elements of an informal marriage or assert that she and Thrash were husband and wife
based on an informal marriage.
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As we noted above, the guardians’ original petition for annulment created an ancillary but
separate proceeding from the guardianship proceeding. The trial court made it clear that the
annulment hearing was not about the guardianship and the court would not hear issues pertaining
to the guardianship. The record shows beyond dispute that the annulment proceeding was not a
proceeding to decide whether to remove either of Thrash’s guardians. See TEX. EST. CODE ANN.
§ 1203.051(a)(6), (7) (stating grounds for removal requiring appointment of a guardian ad litem);
In re Webster, 2015 WL 4722306, at *1. Section 1203.051(b)’s requirement to appoint a guardian
ad litem did not apply in the annulment proceeding, and the trial court did not violate Thrash’s due
process or equal protection rights as alleged.
We overrule Laura’s third issue.
MOTION TO STAY
In her brief, Laura moved this court to stay proceedings in the trial court and to grant
remedial relief “to ameliorate harm that [Thrash] and Laura have suffered due to past statutory
violations.” Having overruled each of Laura’s issues, we deny Laura’s motion as moot.
CONCLUSION
Despite Laura’s arguments to the contrary, the trial court was not required to hold an
evidentiary hearing before it decided the guardians’ petition to annul the marriage, the evidence
supporting the two essential elements to annul the marriage on the ground of mental incapacity
was both legally and factually sufficient, and the trial court did not deprive Thrash of his due
process or equal protection rights. We dismiss Brittany’s appeal for want of jurisdiction, deny the
motion to stay as moot, and affirm the trial court’s order.
Patricia O. Alvarez, Justice
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