Opinion
No. 04-03-00352-CV.
Delivered and Filed: May 12, 2004.
Appeal from the 49th Judicial District Court, Webb County, Texas, Trial Court No. 1999-Cvq-000525-D1, Honorable Manuel R. Flores, Judge Presiding.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Elizabeth Lopez and J.C. Trevino, Jr., his children and grandchildren ("the Trevinos") claim ownership to an 18.9967-acre tract of land, which is part of a larger 113-acre tract purchased in 1946 by Victor Moran. In 1973, Moran — whom Lopez claims was married to her mother, Guadalupe Soto Gutierrez — executed a note in favor of Laredo National Bank and, to secure the note, executed a deed of trust for 89.7538 acres of the land After Moran defaulted on the note, the bank foreclosed on the land; and a joint venture, of which J.C. Trevino, Jr. was a 20% partner, purchased the land at the foreclosure sale. Subsequently, J.C. Trevino, Jr. acquired sole ownership of the disputed 18.9967 tract. Moran died March 17, 1983. In 1999, Lopez filed this suit asserting ownership of the disputed tract. The trial court granted the Trevinos' motion for summary judgment; and Lopez appealed.
1. Lopez first argues the deed of trust is void because, at the time it was executed, Moran was her mother's common-law husband The Trevinos respond that any attempt to prove a common-law marriage is barred by the statute of limitations contained in former section 1.91(b) of the Texas Family Code. We agree.
When Moran signed the 1973 deed of trust, section 1.91(b) of the Texas Family Code provided that an informal marriage could be "inferred if it [was] proved that [the couple] lived together as husband and wife and represented to others that they were married." Act of May 31, 1969, 61st Leg., R.S., ch. 888, § 1, 1969 Tex. Gen. Laws 2707, 2717, amended by Act of May 29, 1989, 71st Leg., R.S., ch. 369, § 9, 1989 Tex. Gen. Laws 1458, 1461. However, in 1989, section 1.91(b) was amended to require that "[a] proceeding in which a marriage is to be proved under this section [must be] commenced not later than one year after the date on which the relationship ended or not later than one year after September 1, 1989, whichever is later." Act of May 29, 1989, 71st Leg., R.S., ch. 369, § 9, 1989 Tex. Gen. Laws 1458, 1461, amended by Act of May 24, 1995, 74th Leg., R.S., ch. 891, § 1, 1995 Tex. Gen. Laws 4404, 4404. Lopez's attempt to prove a common law marriage between her mother and Moran is thus barred by the section 1.91(b) one-year statute of limitations one year after September 1, 1989 or September 1, 1990. See Shepherd v. Ledford, 962 S.W.2d 28, 32 (Tex. 1998) ("When the one-year time period in section 1.91(b) expires, the party asserting an informal marriage is barred . . . from proving the marriage's existence.").
Lopez argues that a proceeding to establish the informal marriage was commenced before September 1, 1990. In support of her argument, she points to a gift deed from Guadalupe to her children, Moran's and Guadalupe's death certificates, and a letter from Moran and Guadalupe to one of the members of the joint venture. However, even if this evidence supported an inference of a marriage, it most certainly does not constitute evidence that a proceeding was commenced before September 1, 1990. Cf. Villegas v. Griffin Indus., 975 S.W.2d 745, 750 (Tex. App.-Corpus Christi 1998, pet. denied) (alleged common-law wife's application to Social Security Administration for widow's benefits was not proceeding to prove the existence of the informal marriage because "there is nothing in the record to suggest that any of the elements required by Texas law had to be proven to obtain widow's benefits, nor that any sort of proceeding was conducted to establish the existence of those elements.").
Because we hold that the one year statute of limitations found in the 1989 version of section 1.91(b) bars Lopez's claim, we need not address her argument that principles of equity should allow her to prove the marriage existed by inference as provided by the version of the statute in effect when the Deed of Trust was signed in 1973.
Lopez also argues she is entitled to take advantage of the rebuttable presumption contained in the 1995 version of section 1.91(b). See Tex. Fam. Code. Ann. § 2.401(b) (Vernon 1998) ("If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married."). We again disagree. The 1995 amendments expressly provide that the amendment "does not permit an action to be commenced on or after [September 1, 1995] to prove the existence of an informal marriage for which an action was barred before [September 1, 1995] for failure to bring the action before the first anniversary of the date the relationship ended." Act of May 24, 1995, 74th Leg., R.S., ch. 891, § 2(c), 1995 Tex. Gen. Laws 4404, 4404; see also Reynolds v. Reynolds, 86 S.W.3d 272, 274-75 n. 2 (Tex. App.-Austin 2002, no pet.); Lavely v. Heafner, 976 S.W.2d 896, 898 n. 2 (Tex. App.-Houston [14th Dist.] 1998, no pet.).
Former section 1.91 became section 2.401 upon the 1997 recodification of the Texas Family Code. Act of April 3, 1997, 75th Leg., R.S., ch. 7, § 1, 1997 Tex. Gen. Laws 8, 15.
Lopez claims that the 1995 amendment has been superceded by the 1997 amendment, which provides:
The change in law made by this Act, as it relates to a suit brought to prove the existence of an informal marriage, applies only to a suit commenced on or after the effective date of this Act. A suit commenced before that date is governed by the law in effect on the date the suit was filed, and the former law is continued in effect for that purpose.
Act of May 26, 1997, 75th Leg., R.S., ch. 1362, § 6, 1997 Tex. Gen. Laws 5113, 5113. We disagree. The 1997 amendment speaks only to the addition of subsection c, which provides that "[a] person under 18 years of age may not . . . be a party to an informal marriage [or] execute a declaration of informal marriage under Section 2.402." Tex. Fam. Code Ann. § 2.401(c) (Vernon 1998).
Because Lopez's suit seeking to establish ownership of the property by virtue of a common-law marriage between Moran and her mother is barred by the statute of limitations, see Shepherd, 962 S.W.2d at 32, we need not and do not address Lopez's argument that any homestead disclaimer by Moran at the time he executed the Deed of Trust was ineffective.
2. Relying on White v. State Farm Mut. Auto. Ins. Co., 907 F. Supp. 1012 (E.D. Tex. 1995), Lopez asks this Court to declare former section 1.91(b) unconstitutional. However, we may not consider this ground for reversal because Lopez failed to timely present the issue to the trial court. See Tex. R. Civ. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal."); Tex.R.App.P. 33.1(a).
3. Lopez also argues that, even if the section 1.91 limitations period precludes establishing a common-law marriage, it does not preclude establishing property rights. Again, we must disagree. Lopez's claim to the property is premised upon the existence of a common-law marriage between Moran and Guadalupe. See Shepherd, 962 S.W.2d at 32 (although alleged common-law spouse could have filed her medical liability claim more than one year after the death of her husband, she was still required to "initiate a proceeding to prove her informal marriage within the one-year time limit.").
4. Lopez also argues section 1.91 does not apply because cloud on title is an issue in her lawsuit. We disagree. Lopez's ability to clear title to the property would be based upon the alleged common law marriage between Moran and her mother; and proof of that alleged marriage is barred by the statute of limitations. See id.
5. Alternatively, Lopez argues that, even if Moran and Guadalupe were not married, the homestead family requirement is met because Moran, Guadalupe, and her children were a "family." However, Lopez did not present this argument to the trial court until after judgment was rendered; therefore, the issue is waived on appeal. See Leinen v. Buffington's Bayou City Service Co., 824 S.W.2d 682, 685 (Tex. App.-Houston [14th Dist.] 1992, no writ) ("When a motion for new trial . . . is filed after summary judgment is granted, the district court may consider only the record as it existed prior to granting the summary judgment. Appellant, having failed to raise the issue of fraud at the summary judgment hearing, cannot raise the issue on appeal.") (internal quotation marks and citation omitted); Tex. R. Civ. P. 166a(c); Tex.R.App.P. 33.1(a).
The trial court's judgment is affirmed.