Summary
In Danna, the appellant relied on testimony by four witnesses recounting isolated instances where the couple held themselves out as husband and wife.
Summary of this case from City of Euless v. DanylykOpinion
No. 05-05-00472-CV
Opinion Filed March 29, 2006.
On Appeal from the 294th Judicial District Court, Van Zandt County, Texas, Trial Court Cause No. 98-00385.
Affirmed.
Before Justices MOSELEY, RICHTER, LANG-MIERS.
MEMORANDUM OPINION
Appellant Alicia Tomlin Danna appeals the trial court's granting of appellee Philip Anthony Danna's motion for directed verdict. We affirm the judgment of the trial court.
BACKGROUND
Alicia filed for divorce from Philip alleging that the two had established an informal marriage. The issue of whether a marriage existed between Alicia and Philip was tried to the bench. When Alicia rested her case in chief, Philip made an oral motion for directed verdict. Finding that Alicia had failed to meet her burden of proof that a marriage existed, the trial court granted the motion. In a single issue, Alicia contends that the trial court's ruling was so against the great weight and preponderance of the evidence that it was clearly wrong and manifestly unjust.
DISCUSSION
Here, in reviewing the granting of the directed verdict, we must determine whether there is more than a scintilla of evidence to raise a fact issue on the question of informal marriage. See Coastal Transport Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). We will consider all of the evidence in a light most favorable to Alicia, the party against whom the verdict was instructed, and disregard all contrary evidence and inferences; we will give Alicia the benefit of all reasonable inferences created by the evidence. See id., at 234.
The three elements of an informal marriage are: (1) agreeing to be married; (2) living together in Texas as husband and wife after making the agreement; and (3) representing to others in Texas that the couple is married. Tex. Fam. Code Ann. § 2.401(a)(2). Unless all three elements co-exist, there is no informal marriage. Bolash v. Heid, 733 S.W.2d 698, 699 (Tex.App.-San Antonio 1987, no writ).
Our review of the record reveals that Alicia failed to offer more than a scintilla of evidence with respect to the third element. It is well settled that "holding out" may be established by the conduct and actions of the parties. Eris v. Phares, 39 S.W.3d 708, 715 (Tex.App.-Houston [1st Dist.] 2001, pet. denied); In re Estate of Giessel, 734 S.W.2d 27, 28 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.) (the statutory requirement of representing marriage to others is synonymous with the judicial requirement of "holding out to the public"). However, isolated references to each other as husband and wife alone do not establish a holding out. Ex Parte Threet, 333 S.W.2d 361, 364 (Tex. 1960) (evidence that a couple was introduced as husband and wife to a few friends constituted no evidence that they held themselves out as married). The couple's reputation in the community as being married is a significant factor in determining the holding out element. Eris, 39 S.W.3d at 715; Grigsby v. Reib, 153 S.W. 1124, 1130 (1913) (the cohabitation must be public so that by the couple's conduct towards each other they may be known as husband and wife).
Here, the record shows that four witnesses testified regarding the holding out element.
One witness testified that, in 1997, Philip introduced Alicia to the witness. The witness recalled that Philip referred to Alicia as his wife. Another witness testified Alicia once referred to Philip as her husband in 1998. According to the witness, Alicia said this in Philip's presence and without comment from him. Another witness said that, several years before the trial in 2004, Alicia told her that she and Philip were married, but the witness did not recall Philip ever saying anything to confirm that. The fourth witness testified that, after consuming alcohol at a social gathering with a few friends in 1996, Philip stated that he and Alicia were married. This witness also stated that he considered the couple to be married because they "partied together and everything."
Several documents were also introduced into evidence. Alicia produced a Valentine card that read "For My Wife" and an AARP enrollment form naming Alicia as his spouse. Both were signed by Philip, who testified that he had given the card to his ex-wife, not to Alicia, and that he had not completed the spouse information on the AARP form, although he admitted signing it. Alicia also introduced into evidence a promissory note and deed of trust evidencing their joint purchase of timeshare property in another community. These documents were executed by Philip Danna and "Alicia Danna," but neither document referenced Philip and Alicia as spouses. And, there was no evidence that anyone in the community saw the card or the AARP form or that anyone was aware that they had purchased the timeshare property. Philip introduced several legal notices that had been published in community newspapers. These notices stated that he was not married to Alicia, nor was he holding himself out to be married to her.
We conclude that there was no more than a scintilla of evidence to raise a fact issue on the element of holding out in Texas. Taken in a light most favorable to Alicia, the evidence simply did not demonstrate that she and Philip both consistently conducted themselves as husband and wife in the public eye or that the community viewed them as married. Without evidence of the holding out element, there could be no finding of an informal marriage. The trial court did not err in granting Philip's motion for directed verdict. Accordingly, we overrule Alicia's sole issue.
CONCLUSION
Having overruled Alicia's only issue, we affirm the judgment of the trial court.