Jilverto Martinez v. Martha Lopez

Opinion issued May 26, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00951-CV

———————————

Jilverto Martinez , Appellant

V.

Martha Lopez , Appellee

On Appeal from the 247th District Court

Harris County, Texas

Trial Court Case No. 2009-13099

MEMORANDUM OPINION

Appellant,

Jilverto Martinez, challenges the trial court’s finding that a common-law

marriage existed between himself and appellee, Martha Lopez. In one issue, Martinez argues that the trial

court erred in holding that a common-law marriage existed and that Lopez had

met her burden of proof to establish the existence of a common-law marriage.

We affirm.

Background

Martinez

and Lopez began dating in 2000 while Lopez was pregnant with A.L., a child from

a previous relationship, and while Martinez was separated from his wife, Maria

Martinez. Martinez’s divorce from Maria was

finalized in June 2001. Before the

divorce was finalized, Lopez became pregnant with Martinez’s son, G.M., who was

born in July 2001. Martinez and Lopez,

along with A.L., began living together upon G.M.’s birth.

Martinez

and Lopez’s second child, J.M., was born in 2002. Martinez and Lopez continued to live together

until March 2008. G.M. and J.M. both

lived with Lopez until May 2008, when G.M. moved in with Martinez. Martinez filed a Suit Affecting the Parent-Child

Relationship requesting custody and visitation with J.M. Lopez answered and counter-petitioned for divorce,

alleging that she and Martinez had a common-law marriage. Martinez denied that they had such a

marriage.

At

trial, Martinez testified that he and Lopez began living together when G.M. was

born because he wanted to care for his son.

Lopez testified that although Martinez never told her that they were

married, she used to introduce Martinez as her husband and he represented to

his friends and family that she was his wife.

Lopez also testified that they shopped for property and a trailer together,

but she admitted that her name was not on the title to that property. Lopez also acknowledged that Martinez bought

a truck while they were together and that her name was not on the title of the

truck, stating, “He never named me on anything of his.” Lopez also testified that she did not work

outside the home while she was living with Martinez. Instead, she prepared all of the meals and

provided all of the child care.

Regarding Martinez’s and Lopez’s own views of the status of their

relationship, Lopez testified:

[Counsel]: And why do you think it is that he never put

you on the taxes.

[Lopez]: Well, because he always looked at me like

I was just anything, like I had no value to him.

[Counsel]: Not as a wife?

[Lopez]: To him, no. He didn’t see me like that.

[Counsel]: You’re basically just the mother of his

children?

[Lopez]: Yes.

[Counsel]: And he would treat you as such?

[Lopez]: Yes.

[Counsel]: Did you ever feel like you were his wife?

[Lopez]: Well, yes.

[Counsel]: Even though he pretty much told you that he

wasn’t?

[Lopez]: Yeah, either way. For me, my life with him was [sic] his wife.

[Counsel]: But, of course, he didn’t see it that way?

[Lopez]: No.

[Counsel]: And you knew that?

[Lopez]: He will make me feel that way.

[Counsel]: So the question — I’m sorry. I’m just asking it, so you knew that, though?

[Lopez]: Yes.

Martinez’s counsel also questioned Lopez about her

statement that she shopped for the property and trailer with Martinez but did

not insist on having her name on the title:

[Counsel]: And whenever you bought the property, you

never insisted on your name being put on there?

[Lopez]: Yes.

[Counsel]: And it was not added though?

[Lopez]: No, because he comes from a marriage where

he lost everything, so he is afraid that the same thing will happen with me.

[Counsel]: So he is basically very careful not to pass

as your husband?

[Lopez]: Of course.

[Counsel]: And the same thing happened with the truck?

[Lopez]: Yes.

[Counsel]: So in the end, he made sure to let you know

and basically informed you that he was not your husband?

[Lopez]: Well, yes.

The trial record contained a copy of Martinez’s 2007

federal income tax return, showing A.L., G.M., and J.M. as dependents, and

showing that Martinez was filing as the head of household.

The

trial court signed the final decree of divorce and stated in its findings of

fact that Martinez and Lopez “entered into an informal marriage on 07/08/2001.” [1] The trial court then found that the marriage

had become insupportable and made findings regarding child support and division

of the marital estate.

Sufficiency of Evidence

In

his sole issue, Martinez argues that the trial court erred in holding that a

common-law marriage existed and that Lopez had met her burden of proof to establish

the existence of a common-law marriage.

A. Standard of Review

In a bench trial, the trial court’s

findings of fact have the same weight as a jury verdict, and we review the

legal and factual sufficiency of the evidence to support the findings using the

same sufficiency standards as when we review a jury’s verdict. Daniel

v. Falcon Interest Realty Corp. , 190 S.W.3d 177, 184 (Tex. App.—Houston

[1st Dist.] 2005, no pet.) (citing Catalina

v. Blasdel , 881 S.W.2d 295, 297 (Tex. 1994)). When challenged, a trial court’s findings of

fact are not conclusive if, as here, there is a complete reporter’s record on

appeal. Id. (citing In re K.R.P. ,

80 S.W.3d 669 , 673 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)).

When conducting a legal sufficiency

review, we credit favorable evidence if a reasonable fact-finder could and

disregard contrary evidence unless a reasonable fact-finder could not. City of

Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005); Brown v. Brown , 236 S.W.3d 343, 348 (Tex. App.—Houston [1st Dist.]

2007, no pet.). We consider the evidence

in the light most favorable to the finding under review and indulge every

reasonable inference that would support it.

City of Keller , 168 S.W.3d at

822 . We sustain a no-evidence contention

only if: (1) the record reveals a

complete absence of evidence of a vital fact; (2) the court is barred by rules

of law or of evidence from giving weight to the only evidence offered to prove

a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of

the vital fact. Id. at 810 .

When conducting a factual

sufficiency review of a finding on which the appellant did not have the burden

of proof, we consider and weigh all of the evidence and set aside the judgment

only if the evidence supporting the challenged finding is so weak as to make

the judgment clearly wrong and manifestly unjust. Figueroa

v. Davis , 318 S.W.3d 53, 59 (Tex. App.—Houston [1st Dist.] 2010, no pet.)

(citing Cain v. Bain , 709 S.W.2d 175,

176 (Tex. 1986) (per curiam)). In a

bench trial, the trial court acts as the fact-finder and is the sole judge of

the credibility of witnesses. HTS Servs., Inc. v. Hallwood Realty

Partners, L.P. , 190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no

pet.); see also Golden Eagle Archery,

Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003) (“It is a familiar

principle that in conducting a factual sufficiency review, a court must not

merely substitute its judgment for that of the [fact-finder].”). The fact-finder may choose to believe one

witness over another. Figueroa , 318 S.W.3d at 60 .

B. Common-Law Marriage

A valid informal, or common-law,

marriage consists of three elements:

(1) agreement of the parties to be married; (2) after the

agreement, their living together in Texas as husband and wife; and (3) their

representing to others in Texas that they are married. Tex.

Fam. Code Ann. § 2.401(a)(2) (Vernon 2006); Eris v. Phares , 39 S.W.3d 708, 713 (Tex. App.—Houston [1st Dist.]

2001, pet. denied) (citing In re Estate

of Giessel , 734 S.W.2d 27, 30 (Tex. App.—Houston [1st Dist.] 1987, writ

ref’d n.r.e.)). The existence of an

informal marriage is a fact question, and the party seeking to establish

existence of the marriage bears the burden of proving the three elements by a

preponderance of the evidence. Weaver v. State , 855 S.W.2d 116, 120

(Tex. App.—Houston [14th Dist.] 1993, no pet.).

An informal marriage does not exist “until the concurrence of all three

elements.” Eris , 39 S.W.3d at 713 (citing Winfield

v. Renfro , 821 S.W.2d 640, 645 (Tex. App.—Houston [1st Dist.] 1991, writ

denied)).

It is

uncontested that the parties cohabitated throughout their relationship, so we examine

whether Lopez met her burden to establish the other two elements of an informal

marriage — that Lopez and Martinez

agreed to be married and that they held themselves out as a married couple.

1. Agreement to Marry

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 ,

39 S.W.3d at 714 . A proponent may prove an agreement to be

married 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 direct evidence that the

parties agreed to be married. Eris , 39 S.W.3d at 714 . Conduct of the parties, cohabitation, and

representations to others may constitute circumstantial evidence of an

agreement to be married. Russell , 865 S.W.2d at 933 . However, “[a] finding that there is legally

and/or factually sufficient evidence of cohabitation and public representation

will not necessarily constitute legally and/or factually sufficient evidence of

an agreement to be married.” Id.

“[T]he circumstances of each case must be determined based upon its own

facts.” Id.

Here,

Martinez argues that Lopez’s testimony “negated any possible inference of an

agreement to be married.” Martinez himself

never testified regarding whether he and Lopez agreed to be married, but he

characterizes Lopez’s testimony as “direct evidence” that he never agreed to

marry her, and thus, “any possible circumstantial evidence . . . cannot

outweigh an outright repudiation of an agreement.” For support, Martinez cites Lopez’s

testimony, given in response to his own counsel’s questions, that Martinez did

not include her name on his tax forms because he did not value her, that he

treated her only as the mother of his children, that he made her feel like she

did not have any value to him as a wife, that he was careful not to “pass as

[her] husband,” and that he “basically informed [her] that he was not [her]

husband” in the context of purchasing the property, trailer, and truck.

This

testimony is insufficient support a conclusion as a matter of law that Lopez

made an “outright repudiation of an agreement” to be married or that Lopez’s

testimony was “direct evidence” that Martinez never agreed to marry her. Furthermore, Lopez also testified that

Martinez had been her sole source of support from the birth of G.M. until the

end of their relationship in March 2008.

She testified that she lived with Martinez as his wife during that time,

taking care of his home and children, and shopping for property and a trailer with

him. Lopez also testified that she and

Martinez identified each other as husband and wife to friends and family, that

she believed she was his wife, and that they raised their children together as

the mother and father of the children.

Viewing this testimony in the light

most favorable to the finding under review and indulging every reasonable

presumption, Lopez’s testimony provides legally sufficient evidence that she

and Martinez “intended to have a present, immediate, and permanent marital

relationship and that they did in fact agree to be husband and wife.” See Eris ,

39 S.W.3d at 714 ; see also City of Keller ,

168 S.W.3d at 822 (holding that we examine evidence in light most favorable to

trial court’s finding when reviewing legal sufficiency).

The only evidence that Martinez relies

on to support his assertion that he never intended to marry Lopez is Lopez’s

testimony as described above and the fact that he did not include her name on

various financial documents. It was

within the trial court’s discretion, as the fact-finder and the sole judge of

the credibility of the witnesses, to credit Lopez’s testimony that she believed

she was Martinez’s wife. See Figueroa , 318 S.W.3d at 60 (holding

that fact-finder may choose to believe one witness over another); HTS Servs. , 190 S.W.3d at 111 (holding

that fact-finder is sole judge of credibility of witnesses). It was also within the trial court’s

discretion to interpret Lopez’s testimony that Martinez did not value her, that

he treated her only as the mother of his children, that he made her feel like

she did not have any value to him as a wife, and that he was careful not to

“pass as [her] husband,” and that he “basically informed [Lopez] that he was

not her husband” in the context of purchasing the property, trailer, and truck as

evidence of the contentious nature of Lopez’s relationship with Martinez,

rather than as evidence that they never intended to be married. See

Figueroa , 318 S.W.3d at 60 ; HTS

Servs. , 190 S.W.3d at 111.

Martinez did not contest that he

provided the sole financial support for Lopez and their children, that Lopez

provided all of the domestic and child care for himself and their children,

that they shopped for the property and trailer together, or that he and Lopez

lived together exclusively and raised the children as their father and

mother. Nor did Martinez contest Lopez’s

testimony that Martinez himself referred to them as being married to his

friends and family. Thus, we also

conclude that, considering and weighing all the evidence, the evidence

supporting the finding that Martinez and Lopez agreed to be married was not so

weak as to make the judgment clearly wrong and manifestly unjust. See Russell ,

865 S.W.2d at 933 (holding that evidence of agreement to be married may be

inferred from conduct of parties, cohabitation, and representations); see also Figueroa , 318 S.W.3d at 59

(providing standard for factual sufficiency review of finding on which

appellant did not have burden of proof).

2. Representations to Others of Marriage

Martinez also argues that Lopez did

not present any evidence other than her testimony that she and Martinez held

themselves out as a married couple in Texas.

See Tex. Fam. Code Ann . § 2.401(a)(2) (requiring that parties

must have represented to others that they were married as element of

establishing informal or common-law marriage).

“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 (citing Winfield ,

821 S.W.2d at 648 ). Spoken words are not

necessary to establish representation as husband and wife — it may be proven by the conduct and actions of

the parties. Id. at 715 . Occasional

introductions as husband and wife are not sufficient to establish the element

of holding out. Id. ; see also Ex Parte Threet ,

333 S.W.2d 361, 364 (Tex. 1960) (evidence that couple was introduced as husband

and wife to a few friends was no evidence that they held themselves out as

married); Winfield , 821 S.W.2d at 651

(two introductions as husband and wife insufficient to establish holding

out). Thus, whether the evidence is

sufficient to establish that a couple held themselves out as husband and wife

turns on whether the couple had a reputation in the community for being

married. Eris , 39 S.W.3d at 715 ; see

also In re Estate of Giessel , 734 S.W.2d at 31 (holding that couple held

themselves out as married when they had reputation in community for being

married even though they had kept marriage secret from a few family members).

Martinez

argues that Lopez failed to present sufficient evidence of holding out because

she did not introduce any evidence of their reputation within the community for

being a married couple. Martinez also

argues that Lopez “provided contrary evidence” as to whether they represented

themselves as husband and wife because she testified that Martinez purposefully

left her name out of his financial transactions and tax forms. However, the fact that Lopez is not mentioned

in the financial documents is not direct proof that the couple did not

represent themselves as husband and wife.

Furthermore, Lopez unequivocally testified that she introduced Martinez

as her husband and that he represented that she was his wife to all of their

friends and family. Lopez also testified

that she lived with Martinez as his wife, beginning when G.M. was born, that

Martinez was her sole source of support during the time they lived together,

that she took care of the home they shopped for together, and that they raised

their children together. Viewed in the

light most favorable to the trial court’s finding, Lopez’s testimony provides

legally sufficient evidence that she and Martinez represented to others that

they were married and supports an inference that they had a reputation in the

community for being married. See Eris , 39 S.W.3d at 715 (providing

that holding out can be established by conduct and actions of parties); see also City of Keller , 168 S.W.3d at

822, 827 (providing standard for reviewing legal sufficiency).

Furthermore, Martinez did not offer

any testimony on this element himself or provide any evidence contradicting

Lopez’s testimony. Thus, considering and

weighing all the evidence, the evidence supporting the finding that Martinez and

Lopez represented to others that they were married was not so weak as to make

the judgment clearly wrong and manifestly unjust. See

Figueroa , 318 S.W.3d at 59 (providing standard for factual sufficiency

review of finding on which appellant did not have burden of proof).

We overrule Martinez’s sole issue.

Conclusion

We

affirm the judgment of the trial court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Sharp, and Massengale.

Justice

Sharp, concurring. Opinion to follow.

[1]

The trial court made the

following statements on the record after the trial:

The Court has heard the testimony and finds that a marriage did exist

between these parties because there was a holding out to family. There were joint purchases, whether or not he

honored her by putting her name on those purchases they purchased the lot and

the trailer together.

They had two children

who bear his name and who have grown up with them as their mother and

father. Although he denies an intent to

be married and she spoke with cultural tendencies by him of a disregard for

her, the Court can by inference find that there was intent to be married by his

holding out to family and the acquisition of property by joint purchases and

for the children.