459 S.W.3d 114
Tex. App.2015Background
- Thorsten and Ana Farrell were married in 1994, divorced in New Mexico in 2003, and later resumed a relationship beginning in early 2004.
- They lived together intermittently; Ana testified they agreed to remarry in January 2004 and moved to Deming (NM); school records show their daughter re-enrolled in Deming on August 15, 2004.
- Thorsten worked for U.S. Border Patrol; parties stipulated federal retirement benefits (FERS/TSP) would be divided equally from the date of any common-law marriage through the second divorce.
- At trial both parties agreed a common-law marriage existed but disputed its start date: Ana alleged September 6, 2004; Thorsten alleged December 2004; trial court found the marriage began August 15, 2004.
- Thorsten appealed, arguing the trial court erred because (1) the parties were living in New Mexico in August 2004 (so no Texas informal marriage), and (2) the evidence was legally and factually insufficient to support the court’s finding; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Ana) | Defendant's Argument (Thorsten) | Held |
|---|---|---|---|
| Existence and date of common-law marriage under Tex. Fam. Code §2.401 (cohabitation in Texas + agreement + representation) | Common-law marriage existed beginning in 2004 (trial evidence supports earlier cohabitation and agreement) | No Texas common-law marriage as the parties lived in New Mexico in August 2004; therefore the August 15, 2004 date is wrong and benefits divestiture is improper | Court found common-law marriage began Aug. 15, 2004 and divided retirement benefits from that date; affirmed on appeal because defendant failed to preserve the specific complaint about cohabitation locale for trial court review |
| Preservation of appellate complaint (failure to raise specific Texas-cohabitation argument below) | N/A (Ana argued no need for new-trial specificity) | Thorsten urged on appeal that no Texas common-law marriage existed because cohabitation occurred in NM; trial counsel's motion for new trial did not specifically raise the Texas-locale argument | Appellate court held Thorsten failed to preserve the specific argument that cohabitation was not in Texas; generic motion for new trial was insufficient to put trial court on notice; issue not preserved, so appellate review denied |
Key Cases Cited
- Small v. McMaster, 352 S.W.3d 280 (Tex. App.—Houston [14th Dist.] 2011) (proponent bears preponderance burden to prove informal marriage)
- Russell v. Russell, 865 S.W.2d 929 (Tex. 1993) (agreement to be married may be proved by direct or circumstantial evidence)
- Lewis v. Anderson, 173 S.W.3d 556 (Tex. App.—Dallas 2005) (agreement element can be established circumstantially)
- Oliver v. Oliver, 889 S.W.2d 271 (Tex. 1994) (discussing common-law marriage recognition across jurisdictions)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal-sufficiency standard for reviewing fact findings)
- Ortiz v. Jones, 917 S.W.2d 770 (Tex. 1996) (bench-trial findings reviewed under same sufficiency standards as jury verdicts)
- Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322 (Tex. 1993) (narrow construction of "fundamental error" doctrine)