Patricia Romano v. NEWELL RECYCLING OF SAN ANTONIO, LP and Sara Guerrero

MEMORANDUM OPINION



No. 04-07-00084-CV

Patricia ROMANO, Appellant

v.

NEWELL RECYCLING OF SAN ANTONIO, LP and Sara Guerrero,

Appellees

From the Probate Court No. 2, Bexar County, Texas

Trial Court No. 2006-PC-1172

Honorable Tom Rickhoff, Judge Presiding

  Opinion by: Steven C. Hilbig, Justice

Sitting: Karen Angelini, Justice

Rebecca Simmons, Justice

Steven C. Hilbig, Justice

Delivered and Filed: January 30, 2008

AFFIRMED  

The trial court was asked to determine which of two women, based on competing claims of common law marriage, was the sole heir of Alejandro Flores Gonzales, Jr. Newell Recycling of San Antonio, LP intervened based upon its interest in the outcome as Gonzales's employer at the time of his death. The trial court concluded Sara Guerrero was Gonzales's common law wife and sole

heir. Appellant Patricia Romano contends the evidence is insufficient to support the trial court's judgment and claims she provided overwhelming evidence establishing she was Gonzales's common law wife and therefore his sole heir. We affirm the trial court's judgment.

Factual and Procedural Background

According to Sara Guerrero, she began dating Gonzales in 1989 and they moved in together in 1990. They continued to live together until Gonzales moved out in 1999. Patricia Romano testified she met Gonzales in early 1998 and they lived together from July 1998 until Gonzales's death in 2005.

On October 20, 2005, Gonzales died intestate. He was killed in an on-the-job accident at Newell Recycling of San Antonio, LP. In 2006 Romano filed an application to determine heirship. Newell intervened because of potential litigation based on the incident in which Gonzales was killed. In its petition in intervention Newell pointed out that two women, Guerrero and Romano, were both claiming informal marriages to Gonzales.

A trial was held in the probate court. Guerrero and Romano presented evidence they claimed supported their common law marriages to Gonzales. At the conclusion of the trial, the court ruled Guerrero's marriage to Gonzales was a valid, existing marriage, precluding any marriage to Romano. The trial court signed a judgment in which it found that while a marriage to both women could be found based on the evidence, because Guerrero's marriage to Gonzales was never dissolved and predated his alleged marriage to Romano, Guerrero was Gonzales's sole heir. Romano perfected an appeal to this court.

Applicable Law

Standard of Review  

Romano attacks the legal and factual sufficiency of the evidence supporting the finding of a common law marriage between Guerrero and Gonzales. Romano timely requested findings of fact and conclusions of law and filed a timely notice of past due findings and conclusions. See Tex. R. Civ. P. 296, 297. The trial court failed to respond with any findings. However, Romano does not complain about the absence of findings of fact and conclusions of law in her appeal. Accordingly, we will review Romano's sufficiency complaints under the standard applicable when findings are neither requested nor filed. See Gulf Coast State Bank v. Emenhiser, 562 S.W.2d 449, 452-53 (Tex. 1978) (holding that "grounds of error not asserted by points of error . . . are waived.").

In a nonjury trial, when no findings of fact or   conclusions of law are   requested or   filed, we imply all necessary   findings in support of the trial court's judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Castano v. Wells Fargo Bank, N.A., 82 S.W.3d 40, 42 (Tex. App.-San Antonio 2002, no pet.). When a reporter's record is included in the record, the implied   findings may be challenged for   legal and   factual insufficiency the same as jury   findings or a trial court's   findings of fact. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Castano, 82 S.W.3d at 42. In a legal sufficiency review, "[w]e review the evidence in the light most favorable to the verdict, disregarding all contrary evidence that a reasonable jury could have disbelieved." Ysleta Ind. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005); see City of Keller v. Wilson, 168 S.W.3d 802, 812, 822 (Tex. 2005). In reviewing factual sufficiency, we weigh all the evidence and set aside the finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In the absence of findings, we must affirm the judgment on any theory of law supported by   the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Castano, 82 S.W.3d at 43. Substantive Law

Elements of Common Law Marriage

"Common law marriages have been recognized in Texas since 1847." ⁽¹⁾ Russell v. Russell, 865 S.W.2d 929, 931 (Tex. 1993) (citing Tarpley v. Poage's Adm'r, 2 Tex. 139, 149 (1847)). A common law marriage has three requirements: (1) the parties agreed to be married; (2) the parties lived together as husband and wife after they agreed to be married; and (3) the parties represented to others that they were married. Tex. Fam. Code Ann. § 2.401(a)(2) (Vernon 2006); Russell, 865 S.W.2d at 932; Palacios v. Robbins, No. 04-02-00338-CV, 2003 WL 21502371, *3 (Tex. App.-San Antonio Jul. 2, 2003, pet. denied) (mem. op.). All three elements must exist at the same time. Palacios, 2003 WL 21502371, at *3.

To establish an agreement to be married, "the evidence must show the parties intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife." Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App.-Houston [1st Dist.] 2001, pet. denied). The agreement to be married may be established by direct or circumstantial evidence. Russell, 865 S.W.2d at 933. The testimony of one of the parties to the marriage constitutes direct evidence the parties agreed to be married. See Eris, 39 S.W.3d at 714 (citing Collora v. Navarro, 574 S.W.2d 65, 70 (Tex. 1978)); In re Estate of Giessel, 734 S.W.2d 27, 32 (Tex. App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.). The conduct of the parties and evidence of cohabitation and representations to others may constitute circumstantial evidence of an agreement depending upon the facts of the case. See Russell, 865 S.W.2d at 933; Eris, 39 S.W.3d at 714.

Cohabitation need not be continuous. See Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App.-San Antonio 1987, no writ) (holding evidence sufficient to establish cohabitation where husband worked in Nigeria but lived with wife each time he returned to Texas). As with all of the elements of common law marriage, cohabitation is determined on a case-by-case basis. See Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981).

The statutory requirement of "represent[ing] to others" is synonymous with the judicial requirement of "holding out to the public." Compare Tex. Fam. Code Ann. § 2.401(a)(2) (Vernon 2006) with Claveria, 615 S.W.2d at 166. "'Holding out'" may be established by the conduct and actions of the parties." Eris , 39 S.W.3d at 715. "Spoken words are not necessary to establish representation as husband and wife." Id. Written references to the marriage or to a party as "spouse" are evidence of "holding out." See Claveria, 615 S.W.2d at 167 (holding recorded deed in which parties represented they were married was evidence of common law marriage); Persons v. Persons, 666 S.W.2d 560, 563 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.) (holding reference to one party as "spouse" in credit application was evidence of holding out). Presumptions Affecting Common Law Marriage

In this matter, there are two applicable presumptions. The first goes to the very existence of a common law marriage while the second concerns validity of later marriages. See Tex. Fam. Code Ann. §§ 1.102, 2.401(b) (Vernon 2006).

Section 2.401 provides that if no proceeding to establish the existence of a common law marriage is "commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed" there was no agreement to be married. Tex. Fam. Code Ann. § 2.401(b) (Vernon 2006). The lapse of time does not bar suit but creates a rebuttable presumption that the couple did not enter into any marriage agreement. Wilson ex rel. C.M.W. v. Estate of Williams, 99 S.W.3d 640, 644 (Tex. App.-Waco 2003, no pet).

The second applicable presumption states, "[w]hen two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage." Tex. Fam. Code Ann. § 1.102 (Vernon 2006). While this presumption is "one of the strongest . . . known to law," the presumption can be rebutted if the party with burden of proof establishes the existence of a valid prior marriage and negates its dissolution. Bailey-Mason v. Mason, 122 S.W.3d 894, 898 (Tex. App.-Dallas 2003, pet. denied). This does not have to be established "absolutely or to a moral certainty." Id. Once evidence is presented to show the prior marriage was not dissolved, it is up to the fact finder to determine whether the presumption has been overcome. Id. If sufficient evidence is presented to establish the prior marriage and its continuing validity, any subsequent marriage is void. See Tex. Fam. Code Ann. § 6.202(a) (Vernon 2006). This rule rendering the subsequent marriage void applies whether the marriage is ceremonial or common law. See, e.g., Foix v. Jordan, 421 S.W.2d 481, 485 (Tex. App.-El Paso 1967, writ ref'd n.r.e.); Barker v. Lee, 337 S.W.2d 637, 639 (Tex. Civ. App.-Eastland 1960, no writ).

Texas law recognizes common law marriage, but does not recognize common law divorce or annulment. Claveria, 615 S.W.2d at 167; Ulloa v. Davila, 860 S.W.2d 202, 203 (Tex. App.-San Antonio 1993, no writ). Accordingly, a common law marriage, like a ceremonial marriage, can terminate only by death, divorce, or court-ordered annulment. Claveria, 615 S.W.2d at 167. In proving the continued validity of the prior marriage, it is unnecessary to prove the absence of divorce or annulment in every jurisdiction where such a proceeding was possible, but only where the parties might reasonably have been expected to pursue them. Davis v. Davis, 521 S.W.2d 603, 605 (Tex. 1975). Proof that a prior marriage was not terminated by a court decree overcomes any presumption that a later marriage is valid. Phillips v. Dow Chem. Co., 186 S.W.3d 121, 127 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (citing Villegas v. Griffin Indus., 975 S.W.2d 745, 750 (Tex. App.-Corpus Christi 1998, pet. denied)).

Analysis

It is undisputed that Guerrero is subject to the presumptions described above. Accordingly, for the court to find Guerrero was Gonzales's sole heir, the evidence had to prove Guerrero's marriage to Gonzales was valid and existing during the time Romano and Gonzalez were purportedly married. ⁽²⁾ On appeal, the question is whether there was legally and factually sufficient evidence to permit the trial court to find (1) Guerrero and Gonzales were informally married prior to any marriage between Romano and Gonzales, and if so, (2) that the Guerrero-Gonzales marriage was never dissolved.

Agreement    

Guerrero and Gonzales met in 1989. They dated until 1990 when they moved into a home rented, and later owned, by Guerrero. Guerrero testified that after a month or two of cohabitation she and Gonzales began referring to themselves as husband and wife. When asked how this came about Guerrero stated that at dinner one night they began talking about "what we were going to do since we're living together." At that dinner "both agreed . . . to live like husband and wife . . . be a married couple . . . both agreed." She testified she considered him her husband and he considered her his wife. Gonzales referred to Guerrero in her presence as "[m]y wife." This testimony, if unchallenged, was legally and factually sufficient to establish an agreement to be married. See Eris, 39 S.W.3d at 714 (citing Collora, 574 S.W.2d at 70); Giessel, 734 S.W.2d at 32.

Romano claims this evidence is insufficient because it is self-serving and is contradicted by other evidence in the record. Romano points to documents signed by Guerrero including a loan application, a Deed of Trust, and a Non-Beneficiary Affidavit. The loan application and Deed of Trust to which Romano refers were related to Guerrero's home purchase. These documents, which were signed in 1997, describe Guerrero as single. Guerrero explained she signed the Deed of Trust and other closing documents without reading them. Guerrero also completed a Non-Beneficiary Affidavit to obtain insurance proceeds following Gonzales's death." The form affidavit contained a question concerning whether Gonzales was married at the time of his death and Guerrero wrote "NOT TO MY KNOWLEDGE." Guerrero explained she believed the question was asking if Gonzales was married to someone else.

Guerrero's representations in these documents, and other items referenced by Romano, go to the weight to be afforded the evidence. They do not negate a common law marriage. See Giessel, 734 S.W.2d at 31. As the trier of fact, it was the trial court's province to weigh the evidence and resolve any conflicts, and we must assume it   resolved all evidentiary   conflicts in accordance with its decision if a reasonable human being could have done so. See City of Keller, 168 S.W.3d at 820 (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (factual sufficiency). The trial court obviously resolved these conflicts in favor of a finding of a common law marriage between Guerrero and Gonzales.

Cohabitation    

There was extensive evidence of cohabitation. Omar Gonzales ("Omar") was Gonzales's best friend and knew him more than twenty years. Omar testified Guerrero and Gonzales "lived together . . . seven years, eight years, nine years, somewhere around there." Guerrero testified she and Gonzales lived together from 1990 until he left the home in June or July of 1999. This is in conflict with Romano's testimony because Romano claimed she and Gonzales moved in together in July of 1998. Several of Guerrero's witnesses testified to cohabitation. Laura Prado testified Gonzales and Guerrero lived together. Prado met the couple through a "pool" league and saw them every week from 1990 to 1993 or 1994. A neighbor, Teresa Munoz Garrett, testified Gonzales moved into Guerrero's house in 1990 and he was there "until later part of the 90s" and then gradually she did not see him anymore. Gloria Castilleja, Gonzales's aunt, also testified Guerrero and Gonzales lived together.

There was evidence that during Guerrero's cohabitation with Gonzales he sometimes left the home and would stay with a friend or a relative. However, but for Romano's testimony that Gonzales lived with her continuously from July of 1998, it does not appear that he left Guerrero for more than a month or two at a time and that he left only during times the couple was fighting. Brief absences from the marital home do not preclude a finding of cohabitation. See Bolash, 733 S.W.2d at 699.

Holding Out    

The record is replete with evidence that Guerrero and Gonzales represented to others that they were husband and wife. It was established by their statements, their conduct, and written references. Guerrero testified they considered each other husband and wife and that he referred to her as his wife. She stated Gonzales introduced her to his friends as his wife and referred to her as his wife in front of her friends. Likewise, Guerrero referred to Gonzales as her husband, not her boyfriend. These references and introductions started when they moved in together in 1990.

Prado testified the couple always introduced themselves as husband and wife. Prado stated that at league events the couple always said "this is my husband and this is my wife." Prado believed they were married. Garrett testified Gonzales referred to Guerrero as "[h]is wife" and Guerrero referred to him as "the husband." She said she always viewed them as husband and wife. Garrett described how Gonzales would come to her house and visit her father. Garrett would hear Gonzales say to her father, "well, . . . I got to go pick up my wife." (italics in the original) Similarly, Guerrero would say to her at the conclusion of a visit, "I got to go -- time to go make dinner for my husband." (italics in the original)

Gonzales's aunt, Castilleja, testified Guerrero "became part of the household, . . . always with us." She said Gonzales called Guerrero "mi vieja," which she interpreted as meaning wife in Spanish. There was no doubt in her mind they were married. Guerrero and Gonzales were sponsors for the 1994 wedding of Castilleja's daughter. Guerrero was even invited to be part of the wedding. Both Guerrero and Gonzales signed the wedding guest book as "Mr. and Mrs. Alex Gonzales." Guerrero testified she signed on the right side of the book and Gonzales signed on the left side. She identified the writing on the left as Gonzales's. The duplication apparently occurred because a child at the wedding was taking the book around asking everyone to sign.

There were documents naming Guerrero as Gonzales's common law wife. Gonzales completed two separate life insurance applications in 1992 naming Guerrero as his first beneficiary and describing his relationship with her as common law wife. In 1997, he completed and signed a life insurance policy modification giving ownership of one of the policies to Guerrero.

We recognize there were conflicts in the evidence with regard to "holding out." Omar testified Gonzales never mentioned to him that he and Guerrero were married. He stated Gonzales only referred to Guerrero as his girlfriend; however, he also claimed Gonzales referred to both Guerrero and Romano as "ruca," which he claimed was Spanish slang for "girlfriend." Guerrero signed documents designating her status as "single." Guerrero and Gonzales never filed joint tax returns and had no joint bank accounts or credit cards. Gonzales's cousin, Irene De Leon, claimed Gonzales only "dated" Guerrero and he never brought her to any family events. She admitted, however, she was not close to Gonzales during the time he was with Guerrero.

Again, these conflicts do not preclude a finding that a common law marriage existed between Guerrero and Gonzales, rather the conflicts go to the weight of the evidence and were for the trial court to resolve. See Giessel, 734 S.W.2d at 31; City of Keller, 168 S.W.3d at 820 (legal sufficiency); Golden Eagle Archery, 116 S.W.3d at 761 (factual sufficiency). We find sufficient evidence to support a finding that Guerrero and Gonzales represented to others that they were married.

Absence of Dissolution    

The only remaining issue is whether the evidence supports the trial court's finding that the Guerrero-Gonzales marriage was never dissolved. Guerrero testified they never divorced and they were still married when he died. Gonzales's aunt, Castilleja, testified Gonzales lived in San Antonio his entire life. Thus, San Antonio (Bexar County) was the only jurisdiction where a divorce or annulment proceeding might reasonably have been pursued by Gonzales. See Davis, 521 S.W.2d at 605. The record contains certificates from the Bexar County District and County Clerks certifying there have been no divorce or other judgments involving Sara Guerrero in the court records of Bexar County. Romano does not contest the sufficiency of proof concerning the absence of a divorce or court-ordered annulment. We find the evidence is legally and factually sufficient to support the trial court's implied finding that the common law marriage between Guerrero and Gonzales was never legally dissolved. Conclusion  

We hold the evidence was legally and factually sufficient to support the trial court's findings of a valid, undissolved common law marriage between Guerrero and Gonzales, precluding any later marriage to Romano. Accordingly, we overrule Romano's issues and affirm the trial court's judgment.

Steven C. Hilbig, Justice

1. "Informal marriage" is the statutory term used to describe what is colloquially known as a common law marriage. See Tex. Fam. Code Ann. § 2.401 (Vernon 2006).

2. Romano contends Guerrero had to rebut the presumption in section 2.401(b) and negate the existence of the Romano-Gonzales common law marriage. We disagree. To prevail, Guerrero was required to prove her prior marriage to Gonzales was valid and never legally dissolved, not that Romano's marriage to Gonzales was invalid. See Tex. Fam. Code Ann. §§ 1.102, 2.401(b) (Vernon 2006). If sufficient evidence established an undissolved informal marriage between Guerrero and Gonzalez, any informal marriage between Romano and Gonzales was void.

See id. § 6.202(a).