Opinion issued February 10, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00243-CV ——————————— PAULA MILLER, Appellant V. JAMES PRINCE A/K/A JAMES SMITH, Appellee
On Appeal from the 309th District Court Harris County, Texas Trial Court Case No. 2011-65843
MEMORANDUM OPINION
In November 2011, Paula Miller sued James Prince for divorce based on
allegations of an informal marriage. Prince moved for summary judgment
contending that the applicable statute of limitations barred Miller’s assertion of an informal marriage as a matter of law. The trial court granted Prince’s motion and
made specific findings that (1) the statute of limitations bars Miller’s petition for
divorce; (2) Prince met his burden to conclusively prove the limitations bar; and
(3) no marriage exists between Miller and Prince.
Miller appeals, contending that genuine issues of material fact exist on the
issue of whether the statute of limitations barred her claim to common-law
marriage. TEX. FAM. CODE ANN. § 2.401(b) (West 2006). We affirm.
Background
Miller met Prince in July 1990 and alleges that she and Prince entered into
an informal marriage two weeks after she met him. By April 1993, the two had
separated, and Miller had become pregnant by another man. She moved to
California during the summer of 1993, where she gave birth to her daughter in
January 1994. She, her daughter, and her son, who was born before she met
Prince, lived in California until August 1994.
Miller returned to Houston with her children in August 1994. She and
Prince, however, did not move in together. In an April 1995 affidavit filed in a
Texas court proceeding involving her daughter, Miller testified that
2 [f]or the past five years immediately [preceding] the date of this affidavit, the child has lived at the following addresses with the following persons: From: January 1994 Until: August 1994 [California address] Persons lived with: Mother—Paula Miller Brother— xxxx xxxx From: August, 1994 Until: Present [Houston address] Persons lived with: Mother—Paula Miller Brother—xxxx xxxx Cousin—Celine Pratts and her daughters . . . . Prince is not mentioned in the affidavit.
Prince ceremonially married another woman, Mary Page, on October 29,
1994.
In her petition for divorce, Miller alleged that she and Prince resumed their
marital relationship when she returned to Houston in August 1994 and cohabitated
“as husband and wife” at a Pearland address from December 1994 until February
2011.
Discussion
I. Summary Judgment Standard of Review
We review a trial court’s summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing a summary
judgment, we take as true all evidence favorable to the nonmovant, indulging every
reasonable inference, and we resolve any doubts in the nonmovant’s favor. Nixon
3 v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985). A defendant moving
for traditional summary judgment must negate at least one essential element of
each of the plaintiff’s causes of action or conclusively establish each element of an
affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
1997).
It is an affirmative defense to assert that a claim is barred by the statute of
limitations. TEX. R. CIV. P. 94. Accordingly, the party moving for summary
judgment based on the statute of limitations carries the burden of establishing as a
matter of law that the limitations period has expired on the claim. Burns v.
Thomas, 786 S.W.2d 266, 267 (Tex. 1990). This includes establishing when the
cause of action accrued. Id.
II. Informal Marriage
Texas is one of a handful of states that continue to recognize informal
marital relationships. A valid informal, or common-law, marriage consists of three
elements: (1) an 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) (West
2006); Nguyen v. Nguyen, 355 S.W.3d 82, 88 (Tex. App.—Houston [1st Dist.]
2011, pet. denied).
4 A. Statute of limitations
Until 1995, parties could seek judicial recognition of an informal marriage
by proving these elements until up to a year after the date the relationship ended.
See Act of June 14, 1989, 71st Leg., R.S., ch. 369, § 9 (former TEX. FAM. CODE
ANN. § 1.91(b)).
The legislature amended this provision, effective for causes of action not
time-barred under the former provision, to abolish the statute of limitations and
instead provide for a rebuttable presumption that the parties did not enter into an
agreement to be married if a proceeding to prove the informal marriage was not
commenced before the second anniversary of the date on which the parties
separated and ceased living together. Act of May 24, 1995, 74th Leg., R.S., ch.
891, S2, 1995 Tex. Gen. Laws 4404, 4404 (current version at TEX. FAM. CODE
ANN. § 2.401(b) (West 2006)).
B. Analysis
Prince relied on Miller’s 1995 affidavit as undisputed evidence showing that
Miller and Prince ceased living together in Texas beginning in April 1993. Prince
contended, therefore, that Miller was required to prove the alleged informal
marriage no later than May 1, 1994, because the absolute one-year statute of
limitations under the predecessor statute governing informal marriages before
September 1, 1995 applies to her claim.
5 Miller attempted to raise a fact issue by controverting her April 1995
affidavit, in which she attested to living apart from Prince, by introducing an
affidavit with different averments in response to Prince’s summary judgment
motion. That attempt is unavailing. A statement in an affidavit fails to raise a
genuine issue of material fact if (1) the statement clearly contradicts the affiant’s
earlier sworn statement on a material point, (2) the affidavit is executed after the
sworn statement was given, and (3) the affidavit fails to explain the reason for the
change. Tejada v. Gernale, 363 S.W.3d 699, 707 (Tex. App.—Houston [1st Dist.]
2011, no pet.). Miller’s affidavit contradicts her earlier sworn statement that only
she, her son, and her daughter lived at the California address, and she provides no
explanation for the discrepancy. Moreover, Miller cannot meet the requirements of
section 2.401(a)(2) of the Family Code because she did not live with Prince in
Texas during the relevant time. According to both of Miller’s affidavits, she and
Prince did not live together when she returned to Texas in August 1994. She
continued to live apart from Prince through October 1994, when Prince entered
into the ceremonial marriage with Page.
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Opinion issued February 10, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00243-CV ——————————— PAULA MILLER, Appellant V. JAMES PRINCE A/K/A JAMES SMITH, Appellee
On Appeal from the 309th District Court Harris County, Texas Trial Court Case No. 2011-65843
MEMORANDUM OPINION
In November 2011, Paula Miller sued James Prince for divorce based on
allegations of an informal marriage. Prince moved for summary judgment
contending that the applicable statute of limitations barred Miller’s assertion of an informal marriage as a matter of law. The trial court granted Prince’s motion and
made specific findings that (1) the statute of limitations bars Miller’s petition for
divorce; (2) Prince met his burden to conclusively prove the limitations bar; and
(3) no marriage exists between Miller and Prince.
Miller appeals, contending that genuine issues of material fact exist on the
issue of whether the statute of limitations barred her claim to common-law
marriage. TEX. FAM. CODE ANN. § 2.401(b) (West 2006). We affirm.
Background
Miller met Prince in July 1990 and alleges that she and Prince entered into
an informal marriage two weeks after she met him. By April 1993, the two had
separated, and Miller had become pregnant by another man. She moved to
California during the summer of 1993, where she gave birth to her daughter in
January 1994. She, her daughter, and her son, who was born before she met
Prince, lived in California until August 1994.
Miller returned to Houston with her children in August 1994. She and
Prince, however, did not move in together. In an April 1995 affidavit filed in a
Texas court proceeding involving her daughter, Miller testified that
2 [f]or the past five years immediately [preceding] the date of this affidavit, the child has lived at the following addresses with the following persons: From: January 1994 Until: August 1994 [California address] Persons lived with: Mother—Paula Miller Brother— xxxx xxxx From: August, 1994 Until: Present [Houston address] Persons lived with: Mother—Paula Miller Brother—xxxx xxxx Cousin—Celine Pratts and her daughters . . . . Prince is not mentioned in the affidavit.
Prince ceremonially married another woman, Mary Page, on October 29,
1994.
In her petition for divorce, Miller alleged that she and Prince resumed their
marital relationship when she returned to Houston in August 1994 and cohabitated
“as husband and wife” at a Pearland address from December 1994 until February
2011.
Discussion
I. Summary Judgment Standard of Review
We review a trial court’s summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing a summary
judgment, we take as true all evidence favorable to the nonmovant, indulging every
reasonable inference, and we resolve any doubts in the nonmovant’s favor. Nixon
3 v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985). A defendant moving
for traditional summary judgment must negate at least one essential element of
each of the plaintiff’s causes of action or conclusively establish each element of an
affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
1997).
It is an affirmative defense to assert that a claim is barred by the statute of
limitations. TEX. R. CIV. P. 94. Accordingly, the party moving for summary
judgment based on the statute of limitations carries the burden of establishing as a
matter of law that the limitations period has expired on the claim. Burns v.
Thomas, 786 S.W.2d 266, 267 (Tex. 1990). This includes establishing when the
cause of action accrued. Id.
II. Informal Marriage
Texas is one of a handful of states that continue to recognize informal
marital relationships. A valid informal, or common-law, marriage consists of three
elements: (1) an 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) (West
2006); Nguyen v. Nguyen, 355 S.W.3d 82, 88 (Tex. App.—Houston [1st Dist.]
2011, pet. denied).
4 A. Statute of limitations
Until 1995, parties could seek judicial recognition of an informal marriage
by proving these elements until up to a year after the date the relationship ended.
See Act of June 14, 1989, 71st Leg., R.S., ch. 369, § 9 (former TEX. FAM. CODE
ANN. § 1.91(b)).
The legislature amended this provision, effective for causes of action not
time-barred under the former provision, to abolish the statute of limitations and
instead provide for a rebuttable presumption that the parties did not enter into an
agreement to be married if a proceeding to prove the informal marriage was not
commenced before the second anniversary of the date on which the parties
separated and ceased living together. Act of May 24, 1995, 74th Leg., R.S., ch.
891, S2, 1995 Tex. Gen. Laws 4404, 4404 (current version at TEX. FAM. CODE
ANN. § 2.401(b) (West 2006)).
B. Analysis
Prince relied on Miller’s 1995 affidavit as undisputed evidence showing that
Miller and Prince ceased living together in Texas beginning in April 1993. Prince
contended, therefore, that Miller was required to prove the alleged informal
marriage no later than May 1, 1994, because the absolute one-year statute of
limitations under the predecessor statute governing informal marriages before
September 1, 1995 applies to her claim.
5 Miller attempted to raise a fact issue by controverting her April 1995
affidavit, in which she attested to living apart from Prince, by introducing an
affidavit with different averments in response to Prince’s summary judgment
motion. That attempt is unavailing. A statement in an affidavit fails to raise a
genuine issue of material fact if (1) the statement clearly contradicts the affiant’s
earlier sworn statement on a material point, (2) the affidavit is executed after the
sworn statement was given, and (3) the affidavit fails to explain the reason for the
change. Tejada v. Gernale, 363 S.W.3d 699, 707 (Tex. App.—Houston [1st Dist.]
2011, no pet.). Miller’s affidavit contradicts her earlier sworn statement that only
she, her son, and her daughter lived at the California address, and she provides no
explanation for the discrepancy. Moreover, Miller cannot meet the requirements of
section 2.401(a)(2) of the Family Code because she did not live with Prince in
Texas during the relevant time. According to both of Miller’s affidavits, she and
Prince did not live together when she returned to Texas in August 1994. She
continued to live apart from Prince through October 1994, when Prince entered
into the ceremonial marriage with Page.
Prince’s marriage to Page nullifies Miller’s allegations that she was in an
informal marriage with Prince after that date. When two or more marriages of a
person to different spouses are alleged, courts presume that the most recent
marriage is valid against each marriage that precedes it, until one who asserts a
6 previous marriage proves its validity. Nguyen, 355 S.W.3d at 89 (citing TEX. FAM.
CODE ANN. § 6.202(a) (West 2006)). Miller’s allegations that she and Prince
resumed cohabiting in an informal marital relationship in Texas after the date of
Prince’s ceremonial marriage to Page do not raise a fact issue delaying the
termination date of the alleged informal marriage. Her affidavit evidence that,
after Prince’s marriage to Page, Prince had been heard to refer to Miller as “my
wife,” or that he had been seen at her Pearland home is likewise ineffective in
overcoming the summary judgment. A person may not be a party to an informal
marriage if the person is “presently married to a person who is not the other party
to the informal marriage.” TEX. FAM. CODE ANN. § 2.401(d); Nguyen, 355 S.W.3d
at 89.
The evidence establishes as a matter of law that Prince and Miller stopped
living together in April 1993 and did not live together in Texas for more than a
year after that date. The statute of limitations in effect at the time they separated
required Miller to seek judicial recognition of the alleged informal marriage no
more than a year after the date the relationship ended—that is, no more than a year
after she could no longer arguably establish the three elements of the claim.
Miller, however, did not bring her claim until 2011, nearly 17 years after that date.
The trial court correctly held that the applicable statute of limitations barred Miller
from claiming an informal marriage to Prince.
7 Conclusion
We affirm the judgment of the trial court.
Jane Bland Justice
Panel consists of Justices Keyes, Bland, and Massengale.