Claveria v. Estate of Claveria

597 S.W.2d 434

• Court: Court of Appeals of Texas
• Decided: February 28, 1980
• Docket: 20048
• Status: Published

Opinions

HUMPHREYS, Justice.

This is an appeal from an order sustaining a plea in bar in a probate proceeding. The appellant, Patricio Claveria, filed a will contest in the probate proceedings of the estate of Otha Faye McQuaid Claveria, Claveria’s ceremonial wife. The administratrix of the estate filed a plea in bar, asserting that Claveria was not the surviving spouse of the deceased because a prior common-law marriage was an impediment to the validity of the ceremonial marriage. The trial judge found a common-law marriage, thus rendering invalid appellant’s ceremonial marriage to the decedent. Consequently, Claveria was not an interested party under Tex.Prob.Code Ann. § 3(r) (Vernon 1956), so as to contest the decedent’s will and to assert a community interest in the estate. Thus, the probate judge dismissed Claveria’s claims and his contest. We hold, however, that the evidence was legally insufficient¹ to establish a prior common-law marriage. Accordingly, we reverse the order of the probate judge.

It is undisputed that Claveria and the decedent participated in a marriage ceremony in 1974 and thereafter lived together as husband and wife until the death of the decedent. The sole disputed question before the probate judge was whether appel-lee established that Claveria had entered into a prior undissolved common-law marriage in Bexar County with a woman whose first name was Carolina. Appellee admits that the ceremonial marriage of Claveria and the decedent is presumed valid. Tex. Fam.Code Ann. § 2.01 (Vernon 1975); Texas Employers Insurance Association v. Elder, 155 Tex. 27, 282 S.W.2d 371 (1955). Thus, in order to invalidate the ceremonial marriage, appellee had the burden of proving the elements of a pre-existing common-law marriage.

The elements of a common-law marriage are set out in Tex.Fam.Code Ann. § 1.91(a)(2) (Vernon 1975), which provides:

(a) In any judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(2) they agreed to be married, and after the agreement they lived together in this state as husband and wife and there represented to others that they were married. [Emphasis added.]

The case before us is somewhat unusual in that the appellee has attempted to establish the existence of a common-law marriage between Patricio and Carolina, despite the vehement assertions of both that no marriage existed between them. Appellee relies on Tex.Fam.Code Ann. § 1.91(b) (Vernon 1975), which provides:

(b) In any proceeding in which a marriage is to be proved under Subsection (а)(2) of this section, the agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married. [Emphasis added.]

Apparently, the probate judge rejected the testimony of both Claveria and Carolina that there was no agreement to be married, and relied on the inference permitted by § 1.91(b). In holding that a common-law marriage existed, the probate judge had to find that Claveria and Carolina held themselves out to the public as man and wife and that they lived together as man and wife. Only if these elements are proved may an inference of an agreement to be married be drawn. The question before us is the legal and factual sufficiency of the evidence to support these two elements of a common-law marriage.

To establish the first element, that Claveria and Carolina held themselves out to the public to be man and wife, appellee introduced a warranty deed and deed of trust, both dated the same day. These documents from a United States government agency were the only proof in the record that Carolina ever acknowledged to anyone that Claveria was her husband. As further proof of holding out to the public, appellee produced Claveria’s statement made in 1972 that he was married to a woman named “Caroline.” This lone statement was made on a deposition in an unrelated lawsuit four years after Claveria moved to Dallas. Carolina has never lived in Dallas. The statement was made to strangers and adverse litigant’s attorneys rather than to any person in Bexar County or at any time germane to this dispute. Consequently, it cannot be taken as a “holding out” of Carolina as his wife at the time of his alleged cohabitation with her.

There is no testimony from anyone in the community where Carolina and Claveria lived which would support a finding of holding out to the public to be man and wife. The designation of Carolina and Claveria in the deed and deed of trust is legally insufficient to establish this element. As the court stated in Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361, 364 (1960):

It was held in Drummond v. Benson, Tex.Civ.App.1939, 133 S.W.2d 154, writ refused, that isolated references to a person as being his or her husband or wife constituted no evidence of a common law marriage. Similarly, the introduction of defendant as her husband to two close friends, and telling two or three others that she was married to defendant constituted no evidence that plaintiff and Threet were living together as husband and wife and holding themselves out to the public as man and wife. Under the Texas decisions, there can be no secret common law marriage as such. The secrecy is inconsistent and irreconcilable with the requirement of a public holding out that the couple are living together as husband and wife. [Footnote omitted.]

Nor does Claveria’s deposition statement establish the holding out requirement. The record is clear that Carolina was not present when the statement was made and thus she is not connected with the statement in any manner. Thus, there is no evidence to establish that Carolina and Claveria jointly held themselves out to the public to be man and wife.

Appellee’s proof on the second element, that Carolina and Claveria lived together as man and wife, consisted of Clave-ria’s deposition testimony and the testimony of both that they had “lived together for two months.” The deposition testimony does not bear on cohabitation. The fact that Claveria and Carolina lived together for two months does not show living together as man and wife. This second element of a common-law marriage requires more than sexual relations under a common roof.

Several cases have set out the requirements of cohabitation to establish a common-law marriage. In Gary v. Gary, 490 S.W.2d 929, 932 (Tex.Civ.App.—Tyler 1973, writ ref’d n.r.e.), the court set out the three elements of a common-law marriage and added that “each of the elements is necessary, and it is particularly essential that the parties mutually agree that they would then and thenceforth be husband and wife and that the following cohabitation be on the faith of this mutual agreement and promise.” And in Humble Oil & Refining Co. v. Jeffrey, 38 S.W.2d 374, 376 (Tex.Civ.App.—Austin 1931), aff’d 55 S.W.2d 521 (Tex.Com.App.1932, judgmt. adopted), cohabitation was defined as living together, claiming to be married, in the relationship of husband and wife, and doing things ordinarily done by husband and wife. In DeShazo v. Christian, 191 S.W.2d 495, 496 (Tex.Civ.App.—Amarillo 1945, writ ref’d n.r.e.), the evidence was held insufficient to establish a common-law marriage even though the woman established that she lived in the same house as her former husband and after their divorce. There was evidence that she had a separate bedroom and spent much of her evenings at her sister’s house. Thus, that court held that the evidence of cohabitation and representations was “wholly insufficient to justify the implication that any such agreement was entered into between them.” Additionally, in Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361, 364 (1960), the supreme court held that there was no evidence of cohabitation and thus no common-law marriage even though it was undisputed that the couple had sexual relations, and there was direct evidence of an agreement to be married.

The necessity of cohabitation as an element of common-law marriage was established by Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124 (1913). In Grigsby, the plaintiff introduced evidence that she had agreed with Grigsby to be husband and wife, that he had introduced her as his wife, and that they often had sexual relations at her residence. In an appeal from an adverse jury verdict, the plaintiff attacked an instruction that in order to find that plaintiff was the common-law wife of Grigsby, the jury must find that she lived with Grigsby as husband and wife pursuant to an agreement to be married. The sole question before the supreme court was the propriety of this instruction. In finding the instruction proper, the court stated: “The cohabitation must be professedly as husband and wife, and public, so that by their conduct towards each other, they may be known as husband and wife.” 153 S.W. at 1130. The strong policy reason for requiring cohabitation to prove a common-law marriage was enunciated by that court as follows:

One of the parties to such a contract might marry and raise a family, and dying without disclosing the former marriage, the “common-law widow” could come forward, claim to be the surviving wife, and thus displace the woman who had borne the hardships of wife and mother, brand the children as bastards, and take the position as survivor with her rights in the estate. A rule for the regulation of the sacred rights of marriage, and the rights of families that make such wrongs possible, should not be recognized in civilized governments.

153 S.W. at 1130.

Appellee argues that the fact that Clave-ria purchased the property named in the deed of trust at the time they were living together shows that they “purchased the home they were living in together as husband and wife” but the proof does not contain the word “home.” The record does not disclose how long they lived in the house after it was deeded to them or when Claveria sold the property. Any inference based upon the purchase of this property that they intended to be married to each other at any specific time is mere speculation. The down payment was only two hundred dollars. Reasonable minds could equally draw the conclusion that the property was bought strictly for resale and that they intended to divide the proceeds and go their respective ways, which is exactly what they did.

Appellee has produced no evidence of an express agreement to be married, but is relying on the inference of an agreement allowed in section 1.91(b). This inferred agreement must be a present agreement, unconditional and unqualified, to be husband and wife as long as both of them live. Schwingle v. Keifer, 105 Tex. 609, 153 S.W. 1132 (1913); Salvini v. Salvini, 2 S.W.2d 963, 966 (Tex.Civ.App.—El Paso 1928, writ dism’d). Evidence of the representations made by the couple and the character of the couple’s cohabitation must lead to the inference that the couple agreed to be husband and wife for the remainder of their lives. The evidence here does not lead to such an inference. Furthermore, in order to infer that the couple intended to remain together permanently, the trial judge had to infer that they were cohabiting from the fact that they lived together for two months. The inference urged by appellee that because they lived together for two months supports the inference that they intended to remain together permanently is unauthorized because it bases one inference upon another. See Schlumberger Well Servicing Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854 at 858 (Tex.1969).

Appellee cites Foix v. Jordan, 421 S.W.2d 481 (Tex.Civ.App.—El Paso 1967, writ ref’d n. r. e.) and Rodriguez v. Avalos, 567 S.W.2d (Tex.Civ.App.—El Paso 1978, no writ) to support the trial court’s finding of valid common-law marriage. In Foix there was evidence of an express agreement to be married, i. e., the couple had participated in a Mexican church wedding. Evidence of cohabitation was provided by testimony of their residence in a house with but one bedroom and but one bed. In Rodriguez the evidence of cohabitation was thirty-years residence together and the conception of three children. Thus, we do not regard these authorities as applicable in the present case.

Accordingly, we hold that where an inference of an agreement to be married is relied on under Tex.Fam.Code.Ann. § 1.91(b) (Vernon 1975), testimony that a couple lived together for two months and the proof showing only one mortgage loan transaction wherein they both acknowledged themselves to be husband and wife is not legally sufficient evidence to support an inference that they had agreed to live together as husband and wife.

Furthermore, the conduct of Carolina and Claveria after Claveria left Bexar County and came to Dallas overcomes any inference authorized by § 1.91(b). Claveria came to Dallas as early as 1968, married the decedent in 1974, and worked for the same employer for about ten years. He and the decedent lived together until her death in 1978. So far as this record discloses, Claveria and Carolina parted company years before áppellant and the decedent were ceremonially married. In a case involving a strikingly similar fact situation, Rosetta v. Rosetta, 525 S.W.2d 255, 261 (Tex.Civ.App.—Tyler 1975, no writ) Justice McKay stated:

In Middlebrook v. Wideman, 203 S.W.2d 686 (Tex.Civ.App.—Texarkana, 1947, no writ) it was held that where it is claimed a common law marriage existed the act of the woman in marrying another effectively rebutted any inference that might have been drawn on a common law marriage, and quoted 18 R.C.L., p. 434: “ ‘An inference of marriage will be overcome where the parties separate and one of them, while the other is known to be alive, marries or cohabits with a third person.’ ”

“The presumption in favor of validity of the second marriage, notwithstanding the prior common-law marriage, ‘is one of the strongest, if, indeed, not the strongest, known to law’, and may even outweigh positive evidence to the contrary.” (Emphasis added.) Mullinax v. Mullinax, 447 S.W.2d 428 (Tex.Civ.App.—Waco, 1969, no writ); Texas Employers Ins. Assn. v. Elder, 155 Tex. 27, 282 S.W.2d 371 (1955); Pacific Employers Indemnity Co. v. Aquirre, 431 S.W.2d 33 (Tex.Civ.App.—Waco, 1968, writ ref’d n.r.e.).

The forceful language of the supreme court in Texas Employers Ins. Association v. Elder, 155 Tex. 27, 282 S.W.2d 371, 374 (1955), was adopted by our 63rd Legislature when it declared the State Policy on this subject. Section 2.01 of the Family Code provides:

In order to promote the public health and welfare and to provide the necessary records, this code prescribes detailed and specific rules to be followed in establishing the marriage relationship. However, in order to provide stability for those entering into the marriage relationship in good faith and to provide legitimacy and security for the children of the relationship, it is the policy of this state to preserve and uphold each marriage against claims of invalidity unless strong reasons exist for holding it void or voidable. Therefore, every marriage entered into in this state is considered valid unless it is expressly made void by this chapter or unless it is expressly made voidable by this chapter and is annulled as provided by this chapter. When 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 it until one who asserts the validity of a prior marriage proves its validity.

We interpret this statute as not only requiring competent evidence to invalidate a ceremonial marriage but also as limiting any presumptions to those favoring the latter marriage. Thus, when an alleged prior marriage is based on inference, the presumption of the validity of the subsequent marriage effectively rebuts any inference of validity of the alleged prior marriage. Therefore, we hold that Claveria’s marriage to deceased rebuts the alleged common-law marriage to Carolina.

Accordingly, appellee’s motion for rehearing is overruled, our former opinion withdrawn, the order of the probate judge is reversed and judgment rendered that Claveria is an interested party under section 3(r) of the Texas Probate Code and therefore may contest the will. The Probate Court is directed to reinstate Claveria’s contest and proceed to trial.

1 . The contention that there is “no evidence” to support a finding or that a fact is “established as a matter of law,” involves the legal sufficiency of the evidence. Sustaining a legal sufficiency point of error usually requires reversal and rendition. “Insufficient evidence” and “great weight and preponderance” points of error test the factual sufficiency of evidence. When a factual insufficiency point is sustained, the court of civil appeals can only remand for another trial. See O’Connor, Appealing Jury Findings, 12 Hous.L.Rev. 65 (1974).