OPINION
This сontroversy is over which of two claimants was the widow of Enrique Ava-los. Margarita Lopez Avalos filed this declaratory judgment proceeding to establish the alleged validity of her prior common law marriage over the purported validity of a later ceremonial marriage, which took place between Enrique and Enedina Rodriguez. The trial Court, sitting without a jury, upheld the validity of the prior common law marriage. Findings of fact and conclusions of law were requested and filed. Enedina, participant in the later ceremonial marriage, appeals, relying in the main on the presumption set out in Sec. 2.01, Tex. Family Code Ann. We аffirm.
*86 Enrique Avalos and Epifania Madrid were married in 1918, and this marriage apparently continued until the death of Ep-ifania in June, 1965. Enrique Avalos and the Plaintiff, Margarita Lopez, began cohabiting about December of 1946, and from this union three children were born, Enrique Avalos, Jr. in 1947, Ernestina Avalos in 1949, and Eduardo Avalos in 1952. When this relationship commenced, Margarita was married to one Antonio Gonzalez. She divorced Antonio Gonzalez in El Paso in July, 1947. Thereafter, it was undisputed that Enrique Avalos and Margarita continued to live together until the death of Epifania in 1965. According to the testimony of Margarita and as found by the trial Court, Margarita and Enrique thereafter continuеd to cohabit until the death of Enrique Avalos in January, 1977.
According to the testimony of the Defendant, Enedina Rodriguez, and also according to the finding of the trial Court, Enrique Avalos cohabited with Enedina after 1965 until his death in 1977. Enedina had two children by Enrique Avalos, one born in 1969, and one in 1972, the latter being the only surviving child of that union. Enedina also testifiеd that she was married to another man when she started to live with Enrique Avalos, but received a divorce from the other man in 1975. On June 23, 1976, Enrique Avalos and Enedina Rodriguez entered into a ceremonial marriage in El Paso, the record thereof being on file with the County Clerk of El Paso County.
The Court concluded that Enrique Avalos and Epifаnia Avalos were husband and wife until the marriage was dissolved by the death of Epifania Avalos on June 16, 1965; that Margarita Lopez Avalos and Enrique Avalos then had a сommon law marriage until said marriage was dissolved by the death of Enrique on January 22, 1977; and that Margarita is the lawful widow of Enrique and entitled to the benefits incident to that stаtus.
In effect, the trial Court ruled that Margarita discharged the burden imposed upon her by Sec. 2.01 of the Family Code, which burden came into effect when Enedina established her ceremonial marriage of 1976. The Defendant’s sole point is that, as a matter of law, her ceremonial marriage to Enrique was valid and that the presumption provided for in Sec. 2.01 was not rebutted.
Before the point itself is reached, the validity of the common law marriage between the Plaintiff and Enrique will be examined. Sec. 1.91(a)(2), Tex.Family Code Ann., calls for the three necessary essentials that must be found to establish a common law marriage, and paragraph (b) of that Section provides that the existence of the agreement of the parties to marry may be inferred if the other two requirements of cohabitаtion and holding out to the public exist. The Section merely codified the liberal rule previously established in this State.
Consolidated Underwriters v. Kelly,
The Defendant, Enedina, testified that Enrique started living with her in 1965; that she was told by him that he had lived with the Plaintiff, had children by her, providеd for her, but that he had never been married to the Plaintiff. Enedina stated that he rented various houses in El Paso for them to live in, the final one being on San Marcial Street. However, she stated she was married during the period of time to another man and was not divorced from him until 1975. She had the two children by Enrique before then, but on June 23, 1976, she was married to Enrique by a Judge in El Paso. At that time, Enrique was seventy-five years old. Her exhibits included her marriage license, a certification of that marriage and its rеcord. She also produced two affidavits for support, dated in 1975 and 1976, which were executed by Enrique whereby he described her as his wife and which were made fоr the purpose of securing a visa for her permanent residence in the United States as an alien. The approval granted to her as a resident alien and a birth certificate of her last child were also introduced. In addition, Enrique’s son, Enrique Avalos, Jr., lived with the Defendant and his father in the Defendant’s home for abоut a year prior to his father’s death. The son stated that during that period of time Enrique would stay at the Plaintiff’s house part of the time and at the Defendant’s house part of the time, but that he thought his mother, the Plaintiff, was his father’s real wife.
The last sentence of Sec. 2.01 of the Family Code provides that 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 until one who asserts the validity of a prior marriage proves its validity. This last Section codified existing law with respect to successive marriages, which was to the effect that the most recent marriage would be presumed valid until a person proves the validity of the prior marriage.
Texas Employers’ Insurance Ass’n v. Elder,
If the point is considered as one attacking the factual sufficiency of thе evidence to support the trial Court’s finding, then after considering all of the evidence in the case, the point is overruled. The judgment of the trial Court is affirmed.