                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               December 7, 2011 Session

      WILLIAM ROBERT LINDSLEY v. LISA WHITMAN LINDSLEY

                  Appeal from the Circuit Court for Blount County
                 No. E-22576   Jon Kerry Blackwood, Senior Judge


               No. E2011-00199-COA-R3-CV - Filed February 27, 2012


William Robert Lindsley (“the plaintiff’) filed this action for divorce against Lisa Whitman
Lindsley (“the defendant”). The defendant, along with her answer, asserted a counterclaim
asking that the marriage be declared void for bigamy predicated upon the fact that the
plaintiff was married when he purported to marry her. The plaintiff obtained a divorce from
his previous wife before the parties to this action separated. The defendant filed a motion
for summary judgment asking that their marriage be declared void. The trial court granted
the defendant summary judgment and the plaintiff appealed. In Lindsley v. Lindsley, No.
E2008-02525-COA-R3-CV, 2010 WL 2349200 (Tenn. Ct. App. E.S., filed June 11, 2010)
(“Lindsley I”) we held that “under Texas law where [the parties were] married, . . . they
could, under the [Texas] statute, enter into a common-law marriage after the spouse was
divorced in the prior marriage.” Id. at *1. Accordingly, we reversed the trial court upon
finding that there was a “disputed issue of fact . . . whether the parties entered into a
common-law marriage after the plaintiff’s prior marriage ended.” Id. We remanded “for a
determination of this factual issue.” Id. On remand, the trial court heard evidence and held
that the plaintiff did not satisfy his burden of showing that the parties’ cohabitation
established the elements of a common law marriage under Texas law. The plaintiff appeals.
We affirm.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Affirmed; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Brett D. Stokes, Knoxville, Tennessee, for the appellant, William Robert Lindsley.

Damon Wooten, Maryville, Tennessee, for the appellee, Lisa Whitman Lindsley.
                                         OPINION

                                              I.

        In 1997, the parties lived together in California. While on a trip to Texas, they
obtained a marriage license and were “married” in a ceremony officiated by a priest and
attended by family and friends. Unbeknownst to the defendant, the plaintiff was still married
to his previous wife, Debra Lindsley. Apparently, either the plaintiff or Debra Lindsley had
not pursued to conclusion a divorce action that one or the other of them had initiated. After
the Texas marriage ceremony, the parties returned immediately to California. In 2003, they
learned that the plaintiff’s previous marriage had not been dissolved. Thereafter, on or about
June 16, 2003, the plaintiff obtained a divorce from Debra Lindsley. The parties continued
to cohabit in California until 2007. In 2007 they moved to Tennessee and continued to
cohabit until they separated in this state in July 2008. Following the parties’ separation, the
plaintiff filed this action for divorce.

        In Lindsley I, we recognized that even though Tennessee law does not permit
common-law marriages to be contracted in this state, nor does it allow ratification of such
marriages, “if the Lindsleys have contracted a valid common-law marriage in a state that
recognizes such marriages, Tennessee Courts will likewise recognize their marriage as
valid.” Id. at * 3. Ultimately, we concluded that California is like Tennessee in that it does
not allow common law marriages but that it would also recognize a common law marriage
contracted in another state. Id. at 5. Thus, the question was whether the parties could have
entered a common law marriage under Texas law by their cohabitation in California and
Tennessee. Id. at 4. We stated:

              Texas law provides that a marriage entered into when one of the
              parties is already married is void. However, if the first marriage
              is later dissolved, the latter marriage may become valid under
              certain circumstances. Tex. Fam. Code Ann. § 6.202 provides
              as follows:

                     (a) A marriage is void if entered into when either
                     party has an existing marriage to another person
                     that has not been dissolved by legal action or
                     terminated by the death of the other spouse.

                     (b) The later marriage that is void under this
                     section becomes valid when the prior marriage is
                     dissolved if, after the date of the dissolution, the

                                              -2-
       parties have lived together as husband and wife
       and represented themselves to others as being
       married.

Texas courts have consistently interpreted Tex. Fam. Code Ann.
§ 6.202(a) to mean that a marriage is void if entered into when
either party has an existing marriage. However, the later
marriage becomes valid when the prior marriage is dissolved if,
after the date of the dissolution, the parties have lived together
as husband and wife and represented themselves to others as
being married. Omodele v. Adams, No. 14-01-00999-CV,
2003 WL 133602 at *3 (Tex. App.- Houston [14 Dist.], Jan. 16,
2003); Garduno v. Garduno, 760 S.W.2d 735, 741 (Tex. App.-
Corpus Christi 1988). The Texas courts have also held that
when a person continues to live with his or her spouse after the
spouse’s divorce in a previous marriage, a common-law
marriage exists that may be the subject of divorce. Omodele at
* 3 (citing Potter v. Potter, 342 S.W.2d 800, 801 (Tex. Civ.
App.- Dallas 1961, 2003)).

The party seeking to establish the existence of a common law
marriage after the impediment to the marriage has been removed
bears the burden of proving that the parties continued to
co-habitate [sic] as man and wife and held themselves out to
others as married after the impediment was removed. Garduno
at 741; Rodriguez v. Avalos, 567 S.W.2d 85, 86 (Tex. Civ. App.
1978). There is no requirement that the parties had to be living
in Texas when the impediment was removed but they then lived
together and held themselves out to others to be man and wife.
Durr v. Newman, 537 S.W.2d 323, 326 (Tex. Civ. App. 1976).

Under Tex. Fam. Code Ann. § 6.202(a) the parties’ 1997
marriage was void when they entered into it due to Mr.
Lindsley’s still existing first marriage. When the prior marriage
was dissolved in 2003, the impediment to the marriage between
the parties was removed and a valid common law marriage came
into existence after the date of the dissolution as long as the
parties lived together as husband and wife and represented
themselves to others as being married. Tex. Fam. Code Ann. §
6.202(b). There is no question that the Lindsleys did not live

                               -3-
              together as husband and wife or hold themselves out to others as
              married in Texas, but a Texas domicile is not required for
              Section 6.202(b) to effect a common-law marriage once the
              impediment is removed. The Trial Court can look to the
              Lindsleys’ behavior in California from 2003 until the time they
              moved to Tennessee and also to their behavior in Tennessee
              from 2007 until their separation on July 4, 2008 to determine
              whether they met the requirements of Section 6.202(b) to
              establish a common-law marriage. See Durr v. Newman at 326.

              As there is a genuine issue of material fact as to whether the
              Lindsleys lived as husband and wife and held themselves out to
              others after plaintiff obtained a divorce [from] his first wife, it
              is necessary that this case be remanded to the Trial Court for
              such a determination.

Lindsley I at *3-5 (footnotes omitted; emphasis added).

       We have reviewed all of the evidence admitted in the hearing on remand. The trial
court’s summary of that evidence as reflected in its findings and conclusions filed December
2, 2010, is accurate and will complete the factual and procedural foundation for this appeal:

              The Court must look to the conduct of the parties after . . .[the
              plaintiff’s] prior marriage . . . [was] dissolved. According to the
              testimony, [the plaintiff] was in financial difficulties with the
              IRS and was attempting to determine the child support payments
              he had made during his prior marriage when he learned that the
              marriage had not been dissolved. [The defendant] testified that
              at that time she considered that she was in a bigamous
              relationship and did not consider [the plaintiff] as her husband.
              Consequently, the parties began legal proceedings in California
              to dissolve [the plaintiff’s] prior marriage. Prior to 2003, the
              parties had filed joint tax returns. After 2003, [the defendant]
              filed tax returns as head of household. She also amended her
              previous tax returns to reflect this status. The parties continued
              to live together, but [the defendant] considered that they were
              domestic partners, not husband and wife. When [the plaintiff’s]
              health insurance elapsed, [the defendant] had [the plaintiff]
              added to her health insurance policy as spouse, but explained
              that she had discussed the living arrangement with her employer

                                              -4-
and that his relationship was as a domestic partner. The parties
continued to reside in California and to cohabit. [The defendant]
also testified that she repeatedly requested of [the plaintiff] that
they undertake a ceremonial marriage, but he declined. During
their period of cohabitation, . . . the parties maintained their
separate financial arrangements. At times [the plaintiff] would
contribute to car payments and [the defendant] would provide
financial assistance to [the plaintiff’s] business. [The plaintiff]
was in financial trouble for a period of time and [the defendant]
acted in a manner to protect herself from his financial plight.
Very little evidence was introduced to explain the day-to-day
living financial arrangements between the parties . . . . The
parties took “family vacations” periodically in which their child
and [the plaintiff’s] child from the previous marriage attended.
There was no evidence except from the parties about how the
parties held themselves out in California and from [the
defendant’s] conduct concerning the parties’ legal obligations in
California after learning of the prior existing marriage and that
[the defendant] was concerned about insulating herself from any
financial liability she might incur with the IRS because of the
parties’ arrangement. Once the parties moved to Tennessee, she
purchased real estate in her own name and operated businesses
without the involvement of [the plaintiff]. When [the plaintiff]
encountered financial difficulty in Tennessee, [the defendant]
loaned him Forty Thousand Dollars. However, this transaction
was evidenced by a promissory note with collateral. This
promissory note was listed as a debt by [the plaintiff] . . . in his
Petition for Bankruptcy that he filed in December 2008. Also,
in this Petition he swore under oath that he was unmarried,
which is in complete contradiction to his position that the parties
were married. [The defendant] did seek and obtain an Order of
Protection in which she listed [the plaintiff] as husband.
However, later in that document she explained that the parties’
ceremonial marriage occurred during the time that [the plaintiff]
was still married. The only evidence of “holding out” was an
email wherein [the defendant] referred to “hubbie,” and an
electrician’s testimony that both parties referred to each other as
husband and wife.




                                -5-
              In reviewing the testimony, the Court finds that [the
              defendant’s] testimony is the more credible and is supported by
              her conduct after she learned that [the plaintiff’s] prior marriage
              had not been dissolved. After this discovery, she maintained
              that the parties were not married. She co-operated [sic] with
              legal counsel to take the steps necessary to dissolve [the
              plaintiff’s] prior marriage. However, she recognized that she
              did not wish to expose herself to any liability as a result of the
              mistaken impression that she was married. She amended her tax
              returns that were filed before her discovery of the prior marriage
              so that her proper status would be consistent to her true status.
              Thereafter, she filed tax returns as “head of household” rather
              than a joint return. When the parties moved to Tennessee, she
              purchased property and operated businesses in her own name.
              When [the plaintiff] needed money for his business, she required
              that he execute a promissory note with collateral. Finally, she
              repeatedly asked [the plaintiff] to engage in a valid marriage
              ceremony for which he declined. The mere fact that the parties
              were introduced as husband and wife is not sufficient to
              establish a common law marriage. More importantly, it is clear
              to the Court that after discovery of the undissolved marriage, the
              record does not support that there was a present agreement to be
              husband and wife. The parties may have continued to cohabit,
              but the Court finds that [the defendant] consistently believed
              they were not husband and wife unless and until a valid
              ceremony was conducted. The Court finds that there was no
              mutual agreement between the parties to be married.

              [The plaintiff] bears the burden to prove the existence of a valid
              common law marriage. The Court finds that he has failed to
              meet this burden and this Complaint for Divorce is dismissed
              with costs assessed against [the plaintiff].

       The trial court entered an order declaring the marriage null and void ab initio because
“the parties did not hold themselves out to be married and . . . there was no mutual agreement
between the parties to be married.” The plaintiff filed this appeal.

                                              II.

       We have restated the issues the plaintiff attempts to raise as follows:

                                              -6-
              Whether the court violated our instructions in Lindsley 1 on
              remand.

              Whether the trial court erred in holding that the marriage was
              void ab initio.

              Whether the defendant has committed fraud on the court by
              perjury that should result in entry of a judgment in favor of the
              plaintiff.

              Whether the evidence preponderates against the trial court’s
              findings.

                                              III.

       In a case tried without a jury, we review the trial court’s findings of facts de novo
upon the record accompanied by a presumption of correctness unless the preponderance of
the evidence is otherwise. Tenn. R. App. P. 13(d); In re Angela E., 303 S.W.3d 240, 246
(Tenn. 2010). Conclusions of law are reviewed de novo with no presumption of correctness.
Id.

                                              IV.

        The plaintiff argues that the trial court violated our instructions on remand in Lindsley
I by requiring that, during the cohabitation, there be a “mutual agreement between the parties
to be married.” In Lindsley I we looked to Durr v. Newman, 537 S.W.2d 323, 326 (Tex.
Civ. App. 1976) for the standard, under Texas law, to establish a common-law marriage by
ratification after removal of the impediment of bigamy. Durr clearly holds that the acts that
amount to ratification do not have to take place in the state of Texas. The appellant in Durr
also argued that ratification cannot occur unless there is proven a new agreement to be
married. The Durr court rejected the argument stating that the statute, now Tex. Fam. Code
Ann. § 6.202(b), imposes a tacit agreement upon “parties [who continue to] live together as
husband and wife and represent themselves to others as being married.” Id. at 326. The trial
court on remand in the present case stated that the requirements are “a present agreement to
be husband and wife; living together as husband and wife; and holding each other out to the
public as such.” Garduno v. Garduno, 760 S.W.2d 735, 741 (Tex. App. Corpus Christi
1988). It is true that the Garduno lists the same three requirements as the “elements of a
common law marriage.” Id. at 738. However, at the point in the Garduno opinion where
the court considered the concept of ratification under the statute, it went on to state, in
complete accord with Durr, that the void marriage becomes valid if, after removal of the

                                               -7-
impediment, “the parties have lived together as husband and wife and represented themselves
to others as being married.” Garduno, 760 S.W.2d at 741.

        Thus, we agree with the plaintiff that, in alluding to the concept of a present intent to
be married, the trial court imposed an element that is not required by Texas law under the
facts of this case. We do not agree with the plaintiff that the trial court simply disregarded
our opinion or that reversal is required. We cited the Garduno opinion in Lindsley I. We
are convinced that the trial court attempted on remand to follow the law we cited but
mistakenly looked to language in Garduno that does not directly apply to ratification after
removal of an impediment. Nevertheless, the trial court did, also, consider the part of
Garduno that is pertinent, i.e., whether the parties lived together and held themselves out as
married after removal of the impediment. We are instructed by Tenn. R. App. P. 36(b) that
we are not to set aside a final judgment unless “considering the whole record, error involving
a substantial right more probably than not affected the judgment or would result in prejudice
to the judicial process.” The trial court also found that “the parties did not hold themselves
out to be married.” For reasons we will more fully explain later in this opinion, we conclude
that the evidence does not preponderate against the trial court’s finding that the parties did
not hold themselves out as married. Accordingly, we hold that the error of requiring a
present agreement to be married did not affect the judgment. The court, despite the error,
reached the correct conclusion.

        The plaintiff also argues that the trial court erred in declaring the marriage void from
the beginning. He suggests that such a finding is inconsistent with both the Texas statute,
§ 6.202, and our holding in Lindsley I. We disagree on both points. The statute expressly
states that a bigamous “marriage is void.” It later states that the “marriage that is void” may
become valid if certain conditions are met. Those conditions were not met in this present
case as the trial court found. In Lindsley I, we stated that, under the Texas statute, “the
parties’ 1997 marriage was void,” but could, depending on the proof on remand, possibly
become a marriage by virtue of the parties actions after 2003. Id. at *6.

        To keep this from being a purely academic question, the plaintiff suggests that the
Texas statute of limitations for declaring a marriage void is one year from the date of the
marriage, citing, Tex. Fam. Code Ann. § 6.109(b). Presumably, if we agreed with the
plaintiff that the marriage was voidable, and not void, we would need to consider whether
the defendant waited too long to challenge the status of the marriage. We stress the fact that
the marriage was void under Texas, and therefore had no legal effect in Tennessee, as found
by the trial court. Thus, we do not agree with the plaintiff’s proposition underlying the need
to look at the Texas statute of limitations.




                                               -8-
        However, even if we were to treat the marriage as merely voidable, we do not agree
with the plaintiff that the statute of limitations he relies on is applicable. By its express
terms, § 6.109 is limited to a narrow set of facts: (1) one party to the marriage obtained a
divorce from a third party within 30 days of the marriage ceremony; (2) the offended spouse
did not know or have reasonable basis to know of the divorce; and (3) the offended spouse
discontinued cohabitation upon learning of the recent divorce. Under such an unusual set of
facts, the offended spouse may seek to void or annul the marriage under Texas law, but must
do so within one year of the date of the marriage. Id. § 6.109(b). It is undisputed in the
present case that the plaintiff did not obtain a divorce within 30 days of marrying the
defendant and it is also undisputed that the defendant did not even learn the plaintiff was still
married to another woman until 2003. Thus, we find no merit in the plaintiff’s contention
that the defendant waited too long to challenge the marriage.

        The two remaining issues both involve the defendants’ credibility and should be
discussed together. The trial court specifically found that the defendant’s “testimony is the
more credible and is supported by her conduct after she learned that [the plaintiff’s] prior
marriage had not been dissolved.” We cannot stress this finding too highly because “[i]n a
case tried without a jury, the question of credibility of the witnesses is exclusively for the
trial judge . . . .” Harwell v. Harwell, 612 S.W.2d 182, 184 (Tenn. Ct. App. 1980). Further,
“on an issue which hinges on witness credibility, [the trial court] will not be reversed unless,
other than the oral testimony of the witnesses, there is found in the record clear, concrete and
convincing evidence to the contrary.” Givler v. Givler, 964 S.W.2d 902, 905 (Tenn. Ct.
App. 1997) (quoting Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn.
Ct. App. 1974)).

       The plaintiff acknowledges the above principles, but tries to do indirectly what he
cannot do directly by arguing that the defendant perjured herself and that, in light of the
defendant’s perjury, the evidence preponderates against the trial courts finding of fact that
the parties did not hold themselves out as married. In our opinion, the alleged perjury is
nothing but a fabrication of the zealousness with which the plaintiff advances his position.

       The point most strenuously argued by the plaintiff is that the defendant denied ever
holding herself out as the plaintiff’s wife, and him as her husband, in responding to a request
to admit, yet, admitted at the hearing, “There are times in my past I have held myself out to
be his wife.” The context of the testimony makes it clear that the defendant readily admitted
that she thought she was married and acted like she was married until the prior undissolved
marriage was revealed and after that she thought she was not married and did not hold herself
out as married.




                                               -9-
        The plaintiff also points to an insurance application wherein the defendant referred
to the plaintiff as her spouse. We are unable to locate the insurance application in the record.
The defendant testified without objection that she listed the plaintiff as her spouse only after
discussing the true status with her employer. It was her understanding, based on the policies
of her employer, that for the purposes of the application an unmarried partner was treated as
a spouse. The plaintiff argues that the defendant’s perjury, in denying she held the plaintiff
out as her husband, is revealed in a petition for order of protection wherein she listed him as
“husband.” However, paragraph 6 on page 2 of the same petition provides additional context
which makes her statements on the petition consistent with her testimony at the hearing:
“Respondent married petitioner while he was still married to his former wife, without
petitioner’s knowledge.”

        The plaintiff also argues that the defendant must be lying because her testimony is at
odds with his. We do not find the plaintiff’s reliance on his own testimony convincing. As
the trial court noted, the plaintiff listed himself as single in his bankruptcy petition. Further,
the trial court had the opportunity to observe the demeanor of both parties and found the
defendant to be the more credible of the two and consistent with the parties’ actions in listing
themselves as unmarried when acquiring property and filing numerous public documents.

         Finally, the plaintiff points us to the testimony of an electrician who did some work
where the parties resided and testified that they referred to each other as husband and wife.
It is clear, however, under Texas law that “occasional introductions as husband and wife do
not establish the element of holding out.” Winfield v. Renfro, 821 S.W.2d 640, 651 (Tex.
App. 1991).

        In summary, we have considered the plaintiff’s arguments related to alleged perjury
and the preponderance of the evidence and find no merit in them. We do not find any
inconsistency in the defendant’s testimony, much less intentional false testimony. We hold
that the evidence does not preponderate against the trial court’s findings.

                                               V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
William Robert Lindsley. This case is remanded, pursuant to applicable law, for collection
of costs.


                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE



                                              -10-
