                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                             ____________________
                               NO. 09-11-00435-CV
                             ____________________

                 KATHLEEN EDNA FUSSELMAN, Appellant

                                          V.

                  LELAND GEORGE FUSSELMAN, Appellee
_______________________________________________________          ______________

                     On Appeal from the 359th District Court
                          Montgomery County, Texas
                        Trial Cause No. 10-04-04180 CV
________________________________________________________          _____________

                           MEMORANDUM OPINION

      In two issues, Kathleen Edna Fusselman appeals from a judgment denying

her claim that she and Leland George Fusselman established an informal marriage.

In issue one, Kathleen argues the great weight and preponderance of the evidence

shows that she and Leland had an informal marriage. In issue two, Kathleen argues

evidence obtained after the trial, a document that Leland filed with his employer,

required the trial court to grant her motion for new trial.



                                           1
                                    Background

      Kathleen filed a petition to divorce Leland in April 2010. Her petition

alleged that she and Leland were married in July 1996, and ceased living together

as husband and wife in April 2010. Leland answered, denying that he and Kathleen

had an existing marriage. Approximately four months later, Leland filed a motion

to dismiss, alleging that he and Kathleen stopped living together in 1994; and,

Leland claimed that he and Kathleen were divorced in July 1996, relying on a

divorce decree from Harris County. Leland’s motion also states that after he and

Kathleen divorced, they never established a common law marriage.

      Several months later, Kathleen filed an amended petition, acknowledging the

1996 divorce. Kathleen’s amended petition alleges that she and Leland entered into

an informal or common law marriage between 1998 and the date they separated in

April 2010.

      In April 2011, following a four-day bench trial, the trial court found

Kathleen’s material allegations of an informal marriage had not been proven by a

preponderance of the evidence, and also found that no informal or common law

marriage existed between Kathleen and Leland at any time after July 25, 1996. The

trial court entered a judgment in Leland’s favor, denying Kathleen’s claim that the

parties had an informal marriage.

                                        2
      Subsequently, Kathleen filed a motion for new trial, alleging that the trial

court’s finding of no informal or common law marriage was against the greater

weight and preponderance of the evidence. Her motion for new trial also claims

that newly discovered evidence, a change of benefits form that Leland filed with

his employer, was evidence unavailable to her when the case was tried. According

to Kathleen, Leland represented in the form that he and Kathleen were married on

dates that support her claim that she and Leland established an informal marriage

after they divorced. The form, which Leland signed approximately eight days after

the bench trial began, reflects that Leland did request his employer to remove

Kathleen from his medical, dental, and health care benefits coverage based on their

“Divorce.” In explanation of his request, in a box marked “Other Reason” for

canceling coverage, Leland wrote “Ex Spouse No Longer Qualified as Dependent

Under IRS Guidelines.”

                               Standard of Review

      An informal marriage may be proven by evidence that “the man and woman

agreed to be married and after the agreement they lived together in this state as

husband and wife and there represented to others that they were married.” Tex.

Fam. Code Ann. § 2.401(a)(2) (West 2006). The three elements of an informal




                                        3
marriage must exist at the same time. Nguyen v. Nguyen, 355 S.W.3d 82, 88 (Tex.

App.—Houston [1st Dist.] 2011, pet. denied).

      In this case, the factual disputes between the parties were resolved in a

bench trial. “In a bench trial, the trial court acts as the fact-finder and is the sole

judge of the credibility of witnesses.” Id. “The existence of an informal marriage is

a fact question, and the party seeking to establish existence of the marriage bears

the burden of proving the three elements by a preponderance of the evidence.” Id.

      “When a party attacks the factual sufficiency of an adverse finding on an

issue on which she has the burden of proof, she must demonstrate on appeal that

the adverse finding is against the great weight and preponderance of the evidence.”

Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In conducting our

review, we “must consider and weigh all of the evidence[.]” Id. An agreement to

be informally married may be established by direct or circumstantial evidence.

Russell v. Russell, 865 S.W.2d 929, 931 (Tex. 1993).

                                     Arguments

      In her first issue, Kathleen argues that the trial court’s finding that no

informal marriage existed between Leland and Kathleen is against the great weight

and preponderance of the evidence. According to Kathleen, the facts in her case are

substantially similar to the facts in Lewis v. Anderson. 173 S.W.3d 556, 563-64

                                          4
(Tex. App.—Dallas 2005, pet. denied). In Lewis, the parties continued to live

together as man and wife for twenty years after their divorce. Id. After the Lewis

jury found that an informal marriage existed, the husband appealed, asserting that

the evidence was legally and factually insufficient to support the verdict. Id. at 557.

Over the husband’s contention that the evidence supporting the verdict was so

weak that the finding was clearly wrong and unjust, the Dallas Court of Appeals

found the evidence legally and factually sufficient to support the jury’s finding that

the parties agreed to be married after their divorce. Id. at 563-64.

      In Kathleen’s case, unlike the jury that decided Lewis, the trial court failed to

find in Kathleen’s favor regarding her claim that she and Leland established an

informal marriage. In contrast, in Lewis, the jury found the parties had an informal

marriage. Id. Because Kathleen failed to prevail on a claim, she must demonstrate

on appeal that the trial court’s findings are so contrary to the overwhelming weight

of all of the evidence as to be clearly wrong and manifestly unjust. See Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986). Due to the differences in the findings that

result in different standards of review on appeal, we conclude that Lewis is

distinguishable.

        The record before us reflects that Kathleen and Leland were ceremonially

married in 1976. In 1977, they had a child together. Kathleen and Leland divorced

                                           5
in July 1996. Even though the record reflects the parties divorced in 1996, there

was also evidence establishing that Leland and Kathleen held themselves out as

married after their divorce, most notably when Leland insured Kathleen through

his employer and when they filed joint tax returns for the years 2002 through 2009.

Although Kathleen points to this evidence to support her claim of informal

marriage, Kathleen was also required to prove that she and Leland lived together

after their divorce and that she and Leland agreed to be married. See Tex. Fam.

Code Ann. § 2.401(a)(2).

      The record reflects that the evidence regarding the elements of cohabitation

and agreement to be married were highly contested, as they depend largely on the

weight and credibility the factfinder decided to assign the evidence the parties

introduced during the trial. With respect to proving an agreement to be married,

Kathleen relied primarily on a brief conversation that she testified she had with

Leland outside a lawyer’s office in 2000 after they executed separate wills.

However, Leland testified the conversation at issue that Kathleen described having

with him never occurred. Leland also testified that he never agreed to be married to

Kathleen after they divorced. As the sole judge of the credibility of the witnesses,

the trial court could reasonably disregard Kathleen’s controverted testimony

regarding her claim that the parties mutually agreed to be married. See McGalliard

                                         6
v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (noting that in a bench trial the

trial court “may believe one witness and disbelieve others”).

      Kathleen relies on other circumstantial evidence in support of the claim that

she and Leland established an informal marriage after their 1996 divorce. Leland’s

will, executed in 2000, contains a single reference to “my wife” in a survival

clause, although it does not expressly refer to Kathleen. Kathleen suggests that this

provision in Leland’s will is circumstantial evidence that would have supported a

finding that she and Leland agreed to marry. But, the will Kathleen executed the

same day before the same witnesses as the one Leland executed refers to Leland as

Kathleen’s “former husband.” Kathleen also identifies a will Leland signed in 2000

as circumstantial evidence that that trial court could have used to support a finding

of an informal marriage. In his 2000 will, Leland left his estate to Kathleen.

Kathleen also points to other documents Leland signed after their divorce, such as

joint income tax returns, insurance applications, and retirement plan documents,

which represent that Kathleen is Leland’s spouse. Nevertheless, the testimony from

the trial reflects that Leland denied that he ever agreed to marry Kathleen; he

attributed the representations in the various documents to his confusion over his

options in filling out forms or to miscommunications with his accountant.




                                         7
      After reviewing all of the evidence, Kathleen’s claim that an agreement to

marry existed is not the only inference available from the evidence before the trial

court. While the various documents contain representations that are inconsistent

with the trial court’s determination regarding whether Leland agreed to marry after

the parties’ 1996 divorce, the trial court was free to accept Leland’s explanations

for the inconsistencies. Additionally, none of the documents on which Kathleen

relies state that Leland agreed to marry, and Leland testified that he made no such

agreement. When the evidence is conflicting, the factfinder is the sole judge of the

credibility of the evidence and the weight to be given the testimony of the

witnesses. See Lewis, 173 S.W.3d at 564. While another trial court might have

resolved the issue differently, the evidence that Leland agreed to marry after his

1996 divorce is not overwhelming and it was the trial court’s responsibility to

weigh the evidence and to assess the credibility of the witnesses in resolving the

dispute.

      The trial court also rejected Kathleen’s claim that the parties lived together

after their 1996 divorce. Black’s Law Dictionary defines “cohabitation” as “[t]he

fact or state of living together, esp. as partners in life, usu. with the suggestion of

sexual relations[]” and “matrimonial cohabitation” as “[t]he living together of

husband and wife.” Black’s Law Dictionary 296 (9th ed. 2009). According to

                                          8
Kathleen, Leland moved back into the marital residence in 2000; but other

evidence introduced during the trial allowed the trial court to conclude that

Kathleen lived in the main dwelling while Leland stored his possessions in a

separate garage apartment while he was living in Trinidad. Also, the trial court was

free to accept Leland’s testimony that after 1994, he and Kathleen did not reside

under the same roof and that after returning to the United States in 2007, he lived

in a garage apartment next to Kathleen’s house. And, Kathleen admitted during the

trial that she and Leland did not live together in the house from 2000 through 2010.

There was also evidence showing that from 1998 through 2010, another man lived

in Kathleen’s house; according to Kathleen, the man was her former lover with

whom she did not currently have a sexual relationship. The trial court’s conclusion

that the parties did not live in the same household after their 1996 divorce is

supported by testimony admitted during trial.

      Kathleen also argues that evidence showing that Leland continued to support

her after their 1996 divorce is circumstantial evidence of cohabitation. With

respect to support, there was substantial evidence that Leland continued to provide

financial support to Kathleen after they were divorced. However, the trial court

could have reasonably rejected Kathleen’s claim that providing support implied

cohabitation; instead, the trial court could have reasonably believed that Leland

                                         9
paid Kathleen’s bills because she was the mother of his daughter and because she

was responsible for maintaining the household where their daughter and

grandchildren lived. We also note that under the terms of their 1996 divorce

decree, Leland was required to pay the mortgage on Kathleen’s house and to pay

alimony.

      Substantial evidence also supports the trial court’s inference that the parties

did not engage in sexual relations after their divorce. According to Kathleen, she

and Leland did not engage in sexual relations at any time after their divorce.

However, Kathleen argues this evidence should be disregarded because their

sexual relationship ceased several years before they were divorced. Kathleen

expressed the opinion that “nothing changed” after the divorce, but there was

evidence that circumstances had changed. Before they divorced, Leland slept in a

chair inside the main house; after the divorce, and after returning to Texas, Leland

slept in the garage apartment. The evidence is consistent with Leland’s claim that

the parties did not engage in sexual relations after their 1996 divorce.

      Considering all of the evidence in the record, the trial court’s conclusion that

Kathleen and Leland were not living together as husband and wife after they

divorced is not against the great weight and preponderance of the evidence. After

reviewing all the evidence, we cannot say the evidence contrary to the trial court’s

                                          10
judgment is so overwhelming that its finding that no informal marriage existed is

clearly wrong and unjust. We overrule issue one.

      In issue two, Kathleen contends the trial court erred in denying her motion

for new trial. Eight days after the trial began, Leland submitted an “Action Plan

Request For Change Form” to his employer. On the form, Leland identified a

“Divorce” as a qualifying event that occurred on April 11, 2011, explaining “Ex

Spouse No Longer Qualified as Dependent Under IRS Guidelines.” Kathleen

argues that Leland’s representation is a post-trial admission that an informal

marriage existed after their 1996 divorce.

      Kathleen’s motion for new trial asserts that the form was newly discovered

evidence. The standard regarding newly discovered evidence requires:

      A party seeking a new trial on grounds of newly-discovered evidence
      must demonstrate to the trial court that (1) the evidence has come to
      its knowledge since the trial, (2) its failure to discover the evidence
      sooner was not due to lack of diligence, (3) the evidence is not
      cumulative, and (4) the evidence is so material it would probably
      produce a different result if a new trial were granted. Denial of a
      motion for new trial is reviewed for abuse of discretion.

Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010) (footnotes

omitted). The record from the trial reflects that Kathleen introduced several

documents dated after the 1996 divorce containing Leland’s representation to his

employer that he and Kathleen were married. Because the newly discovered

                                         11
evidence was cumulative of other evidence admitted during trial, we hold the trial

court’s denial of Kathleen’s motion for new trial was not an abuse of discretion.

See id. We overrule issue two, and we affirm the trial court’s judgment.

      AFFIRMED.




                                             ________________________________
                                                       HOLLIS HORTON
                                                           Justice



Submitted on September 16, 2013
Opinion Delivered September 26, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.




                                        12
