City of Euless, Self-Insured v. Marta Danylyk, Helmut Hofer, Sofija Hofer and the Texas Subsequent Injury Fund

Affirmed and Opinion Filed December 12, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00898-CV
CITY OF EULESS, SELF-INSURED, Appellant
V.
MARTA DANYLYK, HELMUT HOFER, SOFIJA HOFER AND THE
TEXAS SUBSEQUENT INJURY FUND, Appellees
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-01243-2017
MEMORANDUM OPINION
Before Justices Partida-Kipness, Reichek, and Breedlove
Opinion by Justice Partida-Kipness
This case involves a dispute over an informal marriage and the proper
recipient of worker’s compensation death benefits. The Texas Department of
Insurance, Division of Workers’ Compensation (DWC) determined Appellee Marta
Danylyk (Danylyk) is the surviving spouse of David Hofer (Hofer) and entitled to
death benefits. Appellant City of Euless (Euless) unsuccessfully challenged that
determination in the district court. Euless now appeals the trial court’s judgment
confirming the DWC’s decision and order. In three issues, Euless challenges the
legal and factual sufficiency of the evidence to support the jury’s verdict and asserts
the trial court reversibly erred by refusing Euless’s requested jury instructions. We
affirm.1
BACKGROUND2
Danylyk and Hofer met in New York in 2011 and began dating in February
2012. At that time, Hofer served as a police officer for the City of New York.
Danylyk and Hofer began living together in New York in November 2013. The
couple moved to Texas together in January 2014, where Hofer began employment
with the Euless Police Department. The couple initially lived in an apartment while
they searched for a house. On September 14, 2014, Hofer took Danylyk on a pre-
arranged ride-along in his patrol car. Hofer then surprised Danylyk with a proposal
and presented her with an engagement ring and a wedding band, with family and
other officers witnessing the event. The couple purchased a home together in
November 2015.
Tragically, Hofer was killed in the line of duty on March 1, 2016. He is
survived by his father Helmut Hofer, his mother Sofija Hofer, two siblings, and
Danylyk. After Hofer’s death, Ashlee Byers, the president of a local volunteer
organization for the spouses and family members of fallen officers, offered her
1
The Texas Subsequent Injury Fund is no longer a party to this suit. The trial court granted the
DWC’s plea to the jurisdiction, ruling the DWC is not a necessary or indispensable party to the suit. The
court also dismissed the claims against the Texas Subsequent Injury Fund with prejudice because the fund
lacked the capacity to be sued.
2
We provide additional details in our analysis of Euless’s sufficiency challenges.
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assistance.3 Byers informed Danylyk even though she and Hofer did not have a
wedding ceremony, under Texas law they could still be married and Danylyk could
qualify for death benefits. Danylyk then began an heirship determination proceeding
in Collin County Probate Court.
The probate court appointed attorney ad litem Charlotte Key to assist in
determining heirship. After review of the records and interviews with Hofer’s family
and friends, Key determined Danylyk was the sole heir to Hofer’s estate. Hofer’s
parents supported Danylyk’s heirship application. After considering the evidence,
Collin County Probate Court Judge Weldon Copeland granted Danylyk’s
application, concluding Danylyk was Hofer’s sole heir and surviving spouse.
Danylyk then sought death benefits from Euless, a worker’s compensation self-
insurer.
Euless challenged Danylyk’s status as Hofer’s widow and heir before the
DWC. After a contested case hearing, an administrative law judge determined
Danylyk was a surviving spouse and entitled to death benefits under the Texas
Workers’ Compensation Act. See TEX. LABOR CODE §§ 410.151-.169. The DWC
appeals panel did not disturb that decision. After Euless exhausted its DWC
remedies, it filed this suit for judicial review. The case was tried to a jury, which
returned a unanimous verdict against Euless. The jury concluded Euless did not
3
That volunteer organization is “Concerns of Police Survivors,” a.k.a. “C.O.P.S.”
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prove by a preponderance of the evidence Danylyk was not an eligible spouse at the
time of Hofer’s death. The trial court signed a judgment affirming the DWC’s
decision. Euless’s post-verdict motions were overruled by operation of law. Euless
now appeals, challenging the sufficiency of the evidence to support the verdict and
the omission of its requested jury instructions.
STANDARDS OF REVIEW
I. Appeals From DWC Final Decision
The party appealing the final decision of the DWC bears the burden of proof
by a preponderance of evidence. Davis v. Texas Mut. Ins. Co., 443 S.W.3d 260, 266
(Tex. App.—Dallas 2014, pet. denied) (citing TEX. LABOR CODE § 410.303). Judicial
review of the appeals panel’s decision is limited to the issues that were before the
appeals panel; however, the fact finder does not simply review the appeals panel
decision for reasonableness, but decides the issues independently based on a
preponderance of the evidence. Id.
II. Legal Sufficiency
In reviewing legal sufficiency of the evidence, we must consider the evidence
in the light most favorable to the fact finder’s decision and indulge every reasonable
inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.
2005). The final test for legal sufficiency is whether the evidence at trial would
enable reasonable and fair-minded people to reach the verdict under review. Id. at
827. Reviewing courts must credit favorable evidence if reasonable jurors could, and
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disregard contrary evidence unless reasonable jurors could not. Id. Jurors are the sole
judge of witnesses’ credibility and the weight to give to their testimony. Id. at 819.
The jury may choose to believe one witness over another, and a reviewing court may
not impose its own opinion to the contrary. Id. We must assume jurors resolved all
conflicts in accordance with their verdict if reasonable human beings could do so.
Id.When a party attacks the legal sufficiency of an adverse finding on an issue
on which she has the burden of proof, she must demonstrate on appeal the evidence
establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co.
v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing a “matter of law”
challenge, the reviewing court employs a two-part test. The reviewing court must
first examine the record for evidence that supports the finding, while ignoring all
evidence to the contrary. Id. If there is no evidence to support the finding, the
reviewing court will then examine the entire record to determine if the contrary
proposition is established as a matter of law. Id. The point of error should be
sustained only if the contrary proposition is conclusively established. Id.III. Factual Sufficiency
In a factual sufficiency review, we must examine both the evidence supporting
and contrary to the judgment. See Dow Chem. Co., 46 S.W.3d at 242; Plas–Tex, Inc.
v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). The jury is the sole judge of
witnesses’ credibility and the weight given to their testimony. Golden Eagle
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Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). A reviewing court must
not merely substitute its judgment for that of the jury. 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 the adverse finding is
against the great weight and preponderance of the evidence. Dow Chem. Co., 46
S.W.3d at 242. The court of appeals must consider and weigh all the evidence, and
can set aside a verdict only if the evidence is so weak or if the finding is so against
the great weight and preponderance of the evidence that it is clearly wrong and
unjust. Id.
IV. Jury Charge Error
We review a trial court’s decision to submit or refuse a particular jury
instruction for an abuse of discretion. Gunn v. McCoy, 554 S.W.3d 645, 675 (Tex.
2018). But we do not reverse a judgment based on charge error unless the error
probably caused the rendition of an improper judgment or prevented the appellant
from properly presenting the case to the court of appeals. Id.; TEX. R. APP. P. 44.1.
ANALYSIS
In three issues, Euless asserts: (1) the evidence is legally and factually
insufficient to establish Danylyk and Hofer agreed to be married, (2) the evidence is
legally and factually insufficient to establish Danylyk and Hofer represented to
others they were married, and (3) the trial court reversibly erred in refusing to submit
several jury instructions regarding informal marriage. We address each issue in turn.
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I. Danylyk And Hofer Agreed To Be Married
In its first issue, Euless contends the evidence is legally and factually
insufficient to establish Danylyk and Hofer agreed to be married. Because Euless
challenged the DWC’s determination that Danylyk was an eligible spouse and
Hofer’s proper legal beneficiary, at trial Euless had the burden to prove by a
preponderance of the evidence that Danylyk was not an eligible spouse. TEX. LABOR
CODE § 410.303. Thus, the sole jury question inquired: “Was Marta Danylyk not an
eligible spouse of David Hofer at the time of David Hofer’s death?” The jury
answered “No.”
An informal, or common-law marriage may be proved by evidence: (1) the
parties agreed to be married, (2) after the agreement they lived together in Texas as
husband and wife, and (3) they represented to others that they were married. TEX.
FAM. CODE § 2.401(a)(2); Lewis v. Anderson, 173 S.W.3d 556, 559 (Tex. App.—
Dallas 2005, pet. denied).
To establish an agreement to be married, the evidence must show the parties
intended to have a present, immediate, and permanent marital relationship and 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). An agreement to be married may be
proved by direct or circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933
(Tex. 1993). The testimony of one of the parties to the marriage constitutes some
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direct evidence the parties agreed to be married. Small v. McMaster, 352 S.W.3d
280, 283 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).
Proof of cohabitation and representations to others that the couple are married
may constitute circumstantial evidence of an agreement to be married. Russell, 865
S.W.2d at 933. The statutory requirement “represented to others” is synonymous
with the judicial requirement of “holding out to the public.” Eris, 39 S.W.3d at 714–
15. “Holding out” may be established by the conduct and actions of the parties.
Danna v. Danna, No. 05-05-00472-CV, 2006 WL 785621, at *1 (Tex. App.—Dallas
Mar. 29, 2006, no pet.) (mem. op.). Proving a reputation for being married requires
evidence the couple “consistently conducted themselves as husband and wife in the
public eye or that the community viewed them as married.” Id. at *2. Isolated
references to each other as husband and wife alone do not establish a holding out.
Id. But spoken words are not necessary to establish representation as husband and
wife. Eris, 39 S.W.3d at 715. The couple’s reputation in the community as being
married is a significant factor in determining the holding out element. Id.; Danna,
2006 WL 785621, at *1. Each case must be determined based upon its own facts.
Russell, 865 S.W.2d at 933; Lewis, 173 S.W.3d at 559.
A. Legal sufficiency review
Danylyk testified she and Hofer agreed to be married. This agreement did not
come about through a single conversation but occurred over multiple conversations.
She testified the couple decided to move to Texas together because they were
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“committed,” “it’s us and [nobody] else for us for the rest of our lives,” and “this
was going to be our forever until death do us part.” At the September 14, 2014
proposal ceremony, Hofer gave Danylyk a wedding ring and an engagement ring.
Danylyk swore before the probate court she and Hofer agreed to be married on
September 14, 2014, the date of the formal proposal, and considered this date to be
their anniversary. Danylyk also testified the proposal ceremony didn’t change
anything about their relationship. Danylyk stated the two were married at the time
the couple closed on their house in Plano. Hofer’s parents declared under oath to the
probate court Hofer was married to Danylyk when Hofer died.
The foregoing is direct evidence Hofer and Danylyk agreed to be married. See
Lewis, 173 S.W.3d at 560 (alleged wife’s testimony that in the years after a divorce,
she and purported husband agreed they were married and husband told her they were
married was some evidence of an agreement to be married); Omodele v. Adams, No.
14-01-00999-CV, 2003 WL 133602, at *2 (Tex. App.—Houston [14th Dist.] Jan.
16, 2003, no pet.) (mem. op.) (wife’s uncontroverted testimony she and alleged
husband had an agreement was sufficient to show an agreement to be married); Eris,
39 S.W.3d at 714 (alleged husband’s testimony wife told him they “didn’t have to
be married to be married,” and after this conversation he considered they were
married, was more than a scintilla of direct evidence the two agreed to be married);
Small, 352 S.W.3d at 283-84 (wife’s testimony alleged husband agreed to be
married, they exchanged rings in a private ceremony, and husband promised he
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would wear her ring and regard himself as her husband until they were married in a
church was some direct evidence of an agreement to be married); In re Estate of
Giessel, 734 S.W.2d 27, 32 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.)
(widow’s testimony she and decedent had agreed to be married “in God’s eyes” was
direct evidence of an agreement to be married).
Beyond the direct evidence, there is circumstantial evidence of an agreement
to be married: cohabitation and representations to others. Danylyk and Hofer began
living together in New York in November 2013. They moved to Texas together in
2014 and lived together in an apartment. They jointly financed and purchased a home
together in November 2015. A loan application indicated the title would be held as
“community property.” They never lived separately up until Hofer’s death in March
2016.4
Danylyk testified she and Hofer held themselves out as husband and wife after
moving to Texas. She further stated Hofer’s sergeant introduced the couple as “the
Hofers” at a Christmas party, they received invitations as “the Hofers,” and
neighbors referred to them as such. Several witnesses offered corroborating
testimony. Hofer’s father Helmut testified Danylyk and Hofer consistently
conducted themselves as husband and wife in public and the proposal ceremony was
confirmation of that fact. Hofer’s mother Sofija stated Danylyk and Hofer began
4
Euless does not attack the evidence of the couple’s cohabitation from 2013 until Hofer’s 2016
death.
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living as husband and wife when they moved into the apartment in New York and
began to hold themselves out in public as a married couple on September 14, 2014.
The couple’s real estate agent Denise McPeters said when Hofer reached out to her
about purchasing a Texas home, she was left with the impression Hofer and Danylyk
were married. Attorney ad litem Key testified everyone she spoke to during her
investigation for the probate court said Hofer and Danylyk held themselves out as
husband and wife. Euless Police Chief Michael Brown believed they were married.
In the immediate aftermath of Hofer’s death, Euless Police Lieutenant Brandon
Zachary tended to Danylyk and treated her as Hofer’s wife. Euless Assistant Police
Chief Gary Landers testified Hofer and Danylyk were spouses, minus a piece of
paper. He further stated the consensus at the police department was Danylyk is a
surviving spouse. Ashlee Byers—the C.O.P.S. representative—met with Danylyk
immediately after Hofer’s death. Danylyk told her she and Hofer lived together and
did all the things married people do, and friends called them husband and wife.
The foregoing evidence of cohabitation and representing to others is
circumstantial evidence of an agreement to be married. See Lewis, 173 S.W.3d at
559-62 (evidence sufficient to establish an agreement to be married, where, after
their divorce, couple cohabitated for twenty years, adopted two children, made
representations to others they were married, and man willingly signed and accepted
legal documents referring to existing marriage of couple).
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Euless contends there is no direct or circumstantial evidence Danylyk and
Hofer agreed to be married, relying largely on Lorensen v. Weaber, 840 S.W.2d 644,
646 (Tex. App.—Dallas 1992), writ granted (Feb. 10, 1993), rev'd sub nom. Russell
v. Russell, 865 S.W.2d 929 (Tex. 1993). Lorensen is distinguishable because
nowhere in the record did the proponent (Weaber) assert she and Lorensen agreed
to be married. Id. And the trial court’s conclusion Weaber and Lorensen were
informally married on February 16, 1982 was directly contradicted by Weaber’s own
testimony she did not consider herself married at that time. Id. at 647. Here, Danylyk
testified she and Hofer agreed to be married; there was no contrary testimony. The
evidence discussed above supports Danylyk’s testimony.
Euless asserts the agreement was not specific and there was no “meeting of
the minds,” pointing to Danylyk’s testimony the agreement happened over a series
of conversations and the date of their marriage was “fluid.” Euless cites Gary v.
Gary, 490 S.W.2d 929 (Tex. Civ. App.—Tyler 1973, writ ref’d n.r.e.) in support.
But Gary does not hold that an agreement to be married must be tied to a specific
date or cannot be supported by multiple conversations. Indeed, such a requirement
would be contrary to the rule that cohabitation and representations to others—events
which happen over time—can provide circumstantial evidence of an agreement. And
in Gary, the purported wife (Wanda) did not argue she had an express agreement to
be married, but asserted the evidence supported an implied agreement. Id. at 932.
However, the couple did not live together for at least a year before Charles Gary’s
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death and Wanda did not begin referring to herself as Wanda Cegale Gary until after
Charles’s death. Id. Here, Danylyk testified she and Hofer agreed to be married.
Other witnesses testified they were married. The evidence of cohabitation and
representing to others corroborates the agreement.
Euless further asserts there is no “particularly convincing” circumstantial
evidence the couple agreed to be married, relying on Assoun v. Gustafson, 493
S.W.3d 156, 160 (Tex. App.—Dallas 2016, pet. denied). But in Assoun, it was a
third-party (the ex-husband) who tried to establish a marriage between his ex-wife
and her new partner by way of circumstantial evidence. Id. at 162-63. However,
there was direct evidence from the purported spouses they had not agreed to be
married. Id. at 162-63. In the face of this direct evidence from the couple, the ex-
husband’s circumstantial evidence could not create a fact issue. Here, there is no
evidence Hofer or Danylyk disputed they were married before Hofer’s death. And
there is no evidence from any other person disputing the couple agreed to be married.
Euless has challenged an adverse jury finding on which it had the burden of
proof. Accordingly, Euless first had to establish there is no evidence supporting the
jury’s implied finding Hofer and Danylyk agreed to be married. After examining the
record for evidence supporting the finding, while ignoring all evidence to the
contrary, we conclude there is legally sufficient evidence to support the jury’s
finding. Euless has not met its burden under the first step in our inquiry. See Dow
Chem. Co., 46 S.W.3d at 241.
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And while we need not examine the second part of the inquiry–whether Euless
conclusively established as a matter of law Danylyk and Hofer did not agree to be
married–we do so for completeness, and considering Euless’s factual sufficiency
challenges below.
Euless asserts the evidence conclusively proved Danylyk and Hofer had not
agreed to be married, particularly because Danylyk and Hofer never had a singular
conversation where they said “we agree to be married.” Euless points to Danylyk’s
testimony she believed September 14th to be the date of her wedding anniversary,
while admitting it could have been some date before she moved to Texas. Euless
also points to testimony the couple intended to have a ceremonial wedding later. But
Danylyk testified she selected September 14th as the date of her agreement because
“it was a date that had some significance for our relationship” and “we needed a date
for documentation” for the probate court. And she testified the proposal ceremony
did not change anything about the status of their relationship; they had already
agreed to be married. See Aguilar v. State, 715 S.W.2d 645, 648 (Tex. Crim. App.
1986) (“[A]n intention to be ceremonially married on some future occasion does not
necessarily negate the inference that the parties believe they are already married by
common law.”). And as discussed, an agreement to be married need not be tied to a
singular date or conversation, and there was direct evidence Danylyk and Hofer
agreed to be married.
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Euless also relies on Danylyk’s testimony that after the proposal ceremony,
the couple would occasionally refer to each other as husband and wife, but mainly
called each other “fiancé” or “fiancée.” But as discussed, Danylyk also testified she
and Hofer held themselves out as husband and wife after moving to Texas, and other
witness and documentary evidence supported this assertion. Any discrepancies or
inconsistencies about the existence of an agreement, its timing, or the couple’s
representations to the public go to the witnesses’ credibility and the weight accorded
to the evidence. Resolving these issues was solely within the jury’s province, and
we assume the jurors resolved all conflicts in accordance with their verdict. City of
Keller, 168 S.W.3d at 822. Considering the evidence in the light most favorable to
the jury’s decision, we conclude Euless failed to establish as a matter of law that
Danylyk and Hofer did not agree to be married.
B. Factual sufficiency review
Euless asserts the jury’s implied finding Danylyk and Hofer agreed to be
married is so contrary to the overwhelming weight and preponderance of the
evidence as to be clearly wrong and manifestly unjust. Euless’s sole argument is
Danylyk admitted she and Hofer never entered into an agreement to be married. But
the direct and circumstantial evidence discussed above supported that Danylyk and
Hofer agreed to be married. Although the evidence may be conflicting, it turns on
the witnesses’ credibility and demeanor, and the weight given to the evidence. These
matters were for the jury to resolve. We cannot say the evidence of an agreement to
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be married is so weak as to be clearly wrong and manifestly unjust. Small, 352
S.W.3d at 284 (evidence factually sufficient to support an agreement to be married,
where couple exchanged rings, had a private ceremony, and witnesses testified the
couple agreed to be married, despite husband’s conflicting evidence).
We reject Euless’s challenges to the legal and factual sufficiency of the
evidence supporting an agreement to be married. We overrule Euless’s first issue.
II. Danylyk and Hofer Represented To Others They Were Married
In its second issue, Euless challenges the legal and factual sufficiency of the
evidence to support that Danylyk and Hofer represented to others they were married.
Again, the statutory requirement of “represented to others” is synonymous
with the judicial requirement of “holding out to the public.” Eris, 39 S.W.3d at 714–
15. This may be established by the conduct and actions of the parties. Danna, 2006
WL 785621, at *1. The evidence must show the couple “consistently conducted
themselves as husband and wife in the public eye or that the community viewed them
as married.” Id. at *2. Isolated references to each other as husband and wife alone
do not establish a holding out. Id. The couple’s reputation in the community as being
married is a significant factor in determining the holding out element. Id. at *1; Eris,
39 S.W.3d at 715.
A. Legal sufficiency review
As discussed above, Danylyk testified she and Hofer held themselves out as
husband and wife after moving to Texas. They were introduced to others as “the
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Hofers” at social gatherings and received invitations in like manner. Neighbors
referred to them as such. Hofer’s parents testified the couple consistently conducted
themselves as husband and wife in public. Real estate agent McPeters said Hofer left
her with the impression Hofer and Danylyk were married. Hofer and Danylyk
purchased their home as community property. Attorney ad litem Key testified
everyone she spoke to during her investigation said Hofer and Danylyk held
themselves out as husband and wife. Euless Police Chief Brown and other officers
thought Hofer and Danylyk were spouses; that was the consensus at the department.
C.O.P.S representative Byers testified Danylyk told her the couple’s friends called
Hofer and Danylyk husband and wife.
This is more than a scintilla of evidence Danylyk and Hofer represented to
others they were married. Eris, 39 S.W.3d at 715 (legally sufficient evidence of the
“holding out” element present where husband’s friends and employees testified they
thought the couple was married because they lived together and acted as if they were
married, and husband testified he introduced appellant as his wife and she never
contradicted him); Quinn v. Milanizadeh, No. 01–07–00489–CV, 2008 WL
1828327, at *6-7 (Tex. App.—Houston [1st Dist.] April 24, 2008, no pet.) (mem.
op.) (evidence sufficient to support holding out element where couple referred to
themselves as husband and wife to their friends and families, held themselves out as
married when obtaining a VA loan, purchased a timeshare as husband and wife, and
the couple’s families considered them to be married); Omodele, 2003 WL 133602,
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at *3 (purchase of property as community property suggested the parties held
themselves out as married). Euless failed to meet its burden in the first step of the
legal sufficiency inquiry.
As for the second step of Euless’s legal sufficiency challenge, Euless contends
it conclusively established Danylyk and Hofer did not represent to others they were
married. Euless argues no document created prior to Hofer’s death referred to Hofer
and Danylyk as married. Euless relies heavily on numerous documents from 2013
to 2015 wherein Hofer or Danylyk represented their marital status as “single.” These
include:
 Hofer’s 2013-2014 employment records with the City of Euless
 Hofer’s 2013-2014 state and federal tax records
 Danylyk’s 2013-2014 state and federal tax records
 Danylyk’s 2014-2015 employment records
 2015 home purchase documents (loan applications, closing documents,
deed, title insurance).
Euless further asserts every document created after Hofer’s death but before
the filing of the heirship proceeding indicates Hofer was “never married” and
Danylyk was his fiancée. These documents include hospital pastoral care notes, the
original death certificate, funeral home records, and a newspaper obituary. Euless
also points to statements by police and city leaders at a press conference and
memorial services describing Danylyk as Hofer’s fiancée.
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However, Danylyk testified the couple’s home states of New York and New
Jersey do not recognize common-law marriage, and she was unfamiliar with the
legal concept. She did not know she could represent herself as “married” on
documents and records without possessing a legal document indicating they were
married. Consistent with that, once the probate court determined Danylyk was the
surviving spouse, Danylyk had the death certificate amended to indicate Hofer was
married and Danylyk was the surviving spouse. The jury impliedly accepted her
explanation regarding the earlier documents. See Giessel, 734 S.W.2d at 30
(common-law wife testified she never used husband’s last name because she thought
she could not change her name without a formal marriage license).
Euless had the burden to conclusively establish Danylyk and Hofer did not
represent themselves to others as married. While the aforementioned documents and
oral statements may be some controverting evidence, they do not establish as a
matter of law that Hofer and Danylyk did not represent themselves as married.
Giessel, 734 S.W.2d at 31 (“Kuchera’s representations in tax returns and other
documents that she was single go to the weight of the evidence; they do not negate
a marriage, as a matter of law.”).
Euless urges the supreme court’s decision in Ex parte Threet, 333 S.W.2d 361(Tex. 1960) and our decisions in Danna v. Danna, No. 05-05-00472-CV, 2006 WL
785621 (Tex. App.—Dallas Mar. 29, 2006, no pet.) (mem. op.), Smith v. Deneve,
285 S.W.3d 904 (Tex. App.—Dallas 2009, no pet.), and Castillon v. Morgan, No.
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05-13-00872-CV, 2015 WL 1650782 (Tex. App.—Dallas Apr. 14, 2015, no pet.)
(mem. op.) compel a conclusion there is no legally sufficient evidence Danylyk and
Hofer represented themselves to others as married. We disagree.
First, the procedural posture is key. In those cases, the purported spouse
attempted to prove the existence of an informal marriage. Here, Euless had the
burden to disprove the existence of an informal marriage. Second, Threet, Danna,
Smith, and Castillon are factually distinguishable.
In Threet, the woman kept the alleged marriage secret, telling only a few of
her close relatives, a gas station attendant, and an attorney about the marriage.
Threet, 333 S.W.2d at 363-64. She continued using her own name and publicly
represented to those at her school and work she was a single person. Id. The alleged
husband disputed the marriage and testified he never heard of being married until
shortly before he was sued for divorce. Id. The court concluded “secrecy is
inconsistent and irreconcilable with the requirement of a public holding out.” Id. at
364-65.
In Danna, the appellant relied on testimony by four witnesses recounting
isolated instances where the couple held themselves out as husband and wife. Danna,
2006 WL 785621, at *1-2. But the Danna husband challenged any common-law
status, even publishing notices in a newspaper stating he was not married to the
woman. Id. There were a few pieces of contested documentation supporting the
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couple’s marital status but no evidence it was seen by the wider community or that
said community believed the couple was married. Id.Similarly, the alleged husband in Smith relied on certain contracts in which he
and Deneve were listed as husband and wife. Smith, 285 S.W.3d at 910. But there
was no evidence Deneve made these representations or that anyone in the
community saw those contractual representations. Id. And while Smith testified he
and Deneve had been introduced by others as husband and wife, he adduced no
evidence the events were common or rare, or that he and Deneve had any reputation
in the community for being married. Id.Finally, in Castillon, alleged wife Morgan testified she and Castillon
represented themselves as married but presented no evidence of the frequency of
these representations. Castillon, 2015 WL 1650782, at *3-4. Morgan also pointed to
insurance policies and a homebuyer information sheet listing her and Castillon as
spouses but produced no evidence anyone in the community saw these documents.
Id. Morgan did not have or wear a wedding ring and produced no evidence of the
couple’s reputation in the community for being married. Id.Here, statements from disinterested witnesses—Hofer’s parents, real estate
agent McPeters, attorney ad litem Key, Chief Brown, Assistant Chief Landers, and
Lieutenant Zachary—supported that Danylyk and Hofer held themselves out as
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married and had a reputation in the community for such.5 Danylyk produced
evidence that friends, neighbors, and the police community viewed Hofer and
Danylyk as spouses. The supporting evidence exceeds the self-serving testimony and
documents offered in Euless’s cited cases. And there is no testimony Hofer or
anyone in the community contested the couple’s marital status.
Considering the evidence in the light most favorable to the jury’s decision, we
conclude Euless failed to establish as a matter of law Danylyk and Hofer did not
represent themselves to others as married. Euless’s legal sufficiency challenge fails.
B. Factual sufficiency review
Euless contends the jury’s implied finding Danylyk and Hofer represented to
others they were married is so contrary to the overwhelming weight and
preponderance of the evidence as to be clearly wrong and manifestly unjust. Euless
relies on the same tax, employment, and real estate documents and post-death
communications discussed above as evidence the couple did not hold themselves out
as married. For the same reasons discussed above, contrary evidence supported
Danylyk and Hofer represented to others they were married. There was substantial
evidence before the jury to support either an affirmative or negative answer to the
issue. The jury could have placed more weight on the testimony of Danylyk, Hofer’s
5
Hofer’s parents stood to gain financially from Hofer’s death benefits if they had successfully
challenged Danylyk’s status as Hofer’s spouse and sole heir. Their knowing relinquishment of any claim
to Hofer’s benefits was “significant evidence that Mr. and Mrs. Hofer sincerely believed there was a marital
relationship,” according to the probate court.
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parents, police colleagues, and others, and less weight on the documents and
communications relied upon by Euless. The jury chose to believe Danylyk over
Euless. We cannot say the evidence of representing to others is so weak as to be
clearly wrong and manifestly unjust. Giessel, 734 S.W.2d at 32; Romano v. Newell
Recycling of San Antonio, LP, No. 04-07-00084-CV, 2008 WL 227974, at *6 (Tex.
App.—San Antonio Jan. 30, 2008, no pet.) (mem. op.) (evidence factually sufficient
to support trial court’s findings of a common-law marriage; conflict in testimony
and documentary evidence “do not preclude a finding that a [common-law] marriage
existed . . . rather the conflicts go to the weight of the evidence and were for the [fact
finder] to resolve.”).
Euless’s challenges to the legal and factual sufficiency of the evidence
supporting the “represented to others” element of an informal marriage fail. We
overrule Euless’s second issue.
III. Jury Charge
In its third issue, Euless contends the trial court reversibly erred in refusing to
submit five explanatory instructions in the jury charge.
A trial court has considerable discretion to determine proper jury instructions,
and we review a trial court’s decision to submit or refuse a particular instruction for
an abuse of discretion. Gunn, 554 S.W.3d at 675. An instruction is proper if it (1)
assists the jury, (2) accurately states the law, and (3) finds support in the pleadings
and evidence. Id. We do not reverse a judgment based on charge error unless the
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error probably caused the rendition of an improper judgment or prevented the
appellant from properly presenting the case to the court of appeals. TEX. R. APP. P.
44.1(a). Thus, when a trial court refuses to submit a requested instruction that is
otherwise proper, the question on appeal is whether the request was reasonably
necessary to enable the jury to render a proper verdict. Gunn, 554 S.W.3d at 675.
The jury should not be burdened with surplus instructions, even if they are
proper statements of the law. Dallas Cnty. v. Holmes, 62 S.W.3d 326, 332 (Tex.
App.—Dallas 2001, no pet.). If a trial court’s charge fairly and fully presents all
controlling issues to the jury, it is not error to refuse to submit additional issues or
instructions that are mere shades or variations of the issues already submitted.
Daugherty v. Highland Cap. Mgmt., L.P., No. 05-14-01215-CV, 2016 WL 4446158,
at *13 (Tex. App.—Dallas Aug. 22, 2016, no pet.) (mem. op.).
Here, the sole jury question included a definition of “informal marriage”
which tracked the Family Code and the pattern jury charge:
An “informal marriage” is established by evidence that a man and
woman agreed to be married, and after the agreement, they lived
together in Texas as husband and wife and, there represented to others
that they were married.
See TEX. FAM. CODE § 2.401(a)(2); Comm. on Pattern Jury Charges, State Bar of
Tex., TEXAS PATTERN JURY CHARGES: FAMILY PJC 201.4A (2022).
The trial court rejected Euless’s requests to include the following instructions:
Requested Instruction No. 2
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To establish that David Hofer and Marta Danylyk agreed to be husband
and wife, the evidence must show that they intended to create an
immediate and permanent marital relationship and that they did in fact
agree to be husband and wife.
Requested Instruction No. 3
Present consent and agreement to be married is the gist of an informal
marriage, and it is not sufficient to agree on present cohabitation and
future marriage. The agreement necessary for an informal marriage
must be specific from both sides.
Requested Instruction No. 4
The element “represented to others” requires more than occasional
references to each other as “wife” and “husband.”
Requested Instruction No. 5
Whether David Hofer and Marta Danylyk had a reputation in the
community for being married to one another is a significant factor in
your determination of whether David Hofer and Marta Danylyk each
represented to others that they were married.
Requested Instruction No. 6
Proving a reputation for being married requires evidence that David
Hofer and Marta Danylyk consistently conducted themselves as
husband and wife in the public eye or that the wider community viewed
them as married.
Our supreme court has generally advised that a jury charge for a statutory
cause of action should track the statutory language as closely as possible. See Regal
Fin. Co. v. Tex Star Motors, Inc., 355 S.W.3d 595, 601 (Tex. 2010) (“The language
may be slightly altered to conform the issue to the evidence presented in the case,
but a court should not burden a jury with surplus instructions.”) (internal citation
omitted). The trial court’s charge tracked the Family Code provision on informal
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marriage and the PJC. The trial court did not abuse its discretion in refusing to
burden the jury with the surplus instructions, even if they accurately state the law.
Westerman v. Richardson, No. 13-02-420-CV, 2004 WL 100400, at *1–2 (Tex.
App.—Corpus Christi–Edinburg Jan. 22, 2004, no pet.) (mem. op.) (no abuse of
discretion where trial court used pattern jury charge tracking statutory definition of
informal marriage and refused more detailed instructions on “representing to
others”); Ganesan v. Vallabhaneni, 96 S.W.3d 345, 351 (Tex. App.—Austin 2002,
pet. denied) (no abuse of discretion in refusing instruction “The element of
representing to others is not satisfied by an occasional uncontradicted reference to a
cohabitant as ‘my wife’ or ‘my husband’ or ‘mine.’”).
Euless cites numerous cases in support of its argument, but only Grumbles v.
Ineos USA, LLC, No. 13-18-00316-CV, 2019 WL 2622339 (Tex. App.—Corpus
Christi June 27, 2019, pet. denied) (mem. op.) involved a jury charge issue. And the
Grumbles court simply held the trial court did not abuse its discretion in including
an instruction similar to Euless’s requested instructions four and five, not that such
instructions are required. Id. at *4-5. And again, the procedural posture differs. The
Grumble plaintiff had the burden to prove the existence of the common-law
marriage. See id. Here, Euless had the burden to disprove the existence of the
marriage. The addition of the requested instructions could have improperly
suggested to the jury Danylyk had the burden to prove her marriage. See Ganesan,
96 S.W.3d at 351 (“In effect, Ganesan tendered the instruction so the court could
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provide the jury guidance on the weight to give the evidence, which would have
been an impermissible comment by the trial court.”).
Further, Euless does not explain why or how each of the omitted instructions
probably caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a);
Muhs v. Whataburger, Inc., No. 13-09-00434-CV, 2010 WL 4657955, at *10 (Tex.
App.—Corpus Christi–Edinburg Nov. 18, 2010, pet. denied) (mem. op.) (party
failed to explain how he was harmed by trial court’s exclusion of requested
instructions). This is particularly critical, considering the jury’s unanimous verdict
against Euless. And, during closing argument Euless argued the same themes from
the proposed instructions. Euless has not shown how or why inclusion of the
instructions would have caused the jury to decide the case differently. See Hinojosa
v. LaFredo, No. 05-18-01543-CV, 2021 WL 2217165, at *9-10 (Tex. App.—Dallas
June 2, 2021, pet. denied) (mem. op.) (absence of requested instruction probably did
not cause rendition of improper judgment where jury heard parties’ closing
arguments on how to apply the law to the facts of the case). We overrule Euless’s
third issue.
CONCLUSION
The evidence is legally and factually sufficient to support the jury’s verdict
regarding the “agreement to be married” and “represented to others” elements of an
informal marriage between Danylyk and Hofer. And, the trial court did not abuse its
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discretion in refusing to submit Euless’s requested jury instructions. Accordingly,
we affirm the judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
220898F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CITY OF EULESS, SELF- On Appeal from the 366th Judicial
INSURED, Appellant District Court, Collin County, Texas
Trial Court Cause No. 366-01243-
No. 05-22-00898-CV V. 2017.
Opinion delivered by Justice Partida-
MARTA DANYLYK, HELMUT Kipness. Justices Reichek and
HOFER, SOFIJA HOFER AND Breedlove participating.
THE TEXAS SUBSEQUENT
INJURY FUND, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees MARTA DANYLYK, HELMUT HOFER,
SOFIJA HOFER AND THE TEXAS SUBSEQUENT INJURY FUND recover
their costs of this appeal from appellant CITY OF EULESS, SELF-INSURED.
Judgment entered this 12th day of December, 2023.
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