Affirmed and Memorandum Opinion filed October 16, 2012.




                                             In The

                        Fourteenth Court of Appeals

                                    NO. 14-11-00499-CV


                              JIMMY O. BAILEY, Appellant

                                               V.

                      CHRISTY HOOVER THOMPSON, Appellee


                         On Appeal from the 253rd District Court
                               Chambers County, Texas
                              Trial Court Cause No. 25449


                    MEMORANDUM                           OPINION

       Appellant Jimmy O. Bailey appeals the trial court’s judgment establishing that an
informal marriage1 existed between Jimmy and appellee Christy Hoover Thompson.
Jimmy also challenges the trial court’s property division. Jimmy contends that the “trial
court abused its discretion because the evidence is factually and legally insufficient to
establish that Jimmy and Christy had an agreement to be married” and “held themselves
out as being married.” He also contends that the trial court abused its discretion by

       1
        “Informal marriage” is the statutory term used to describe what is colloquially known as a
common law marriage. See Tex. Fam. Code § 2.401(a)(2) (Vernon 2006).
dividing his retirement account because “the parties were not married; alternatively, the
parties were not married on September 20, 2005.” We affirm the trial court’s judgment.

                                       Background

       Christy sued for divorce and sought a property division based on allegations that
she and Jimmy had established an informal marriage. The marriage and property division
issues were bifurcated and tried separately. On November 17, 2010 and December 16,
2010, a bench trial was held on the issue of informal marriage.

       At trial, Christy testified that she has three daughters: Ashley Hoover and twins
Teri Rae and Taylor Lea Thompson. Christy testified that she met Jimmy in January
2005, and that he moved into her home on Fleetwood Street in Baytown in March 2005.
At that time, the twins were attending high school and still were living with Christy;
Ashley had moved out to attend college. Christy stated that she and Jimmy “separated in
June 2005 for maybe 20 days;” after that, Jimmy moved back to her home. Christy
acknowledged that Jimmy maintained an apartment until January or February 2006, but
stated that he did so because he “couldn’t break his lease.”

       Christy could not point to an exact date when she and Jimmy agreed to be married;
she stated that they “discussed it in the summer of 2005” before she and Jimmy went to
buy a ring for her.    According to Christy, Jimmy bought her engagement ring and
wedding band on August 20, 2005. Christy testified that she was very surprised when
Jimmy took her to the jewelry store to buy rings; she also testified that the diamond
solitaire used in her ring came from a ring she already owned.

       The parties decided in September 2005 to purchase a home together on Black
Cherry Lane in Baytown and signed a contract with Kimball Hill Homes at that time.
Christy and Jimmy broke ground on the new home on September 20, 2005. That same
day, Christy put the wedding band on and Jimmy told her “you might as well wear the
wedding ring, too.” Christy testified that “it was agreed” they were married, and that she
and Jimmy “were joining [their] lives together at that point.” According to Christy, she


                                             2
always wore the wedding band after September 20, 2005.

        Christy testified that she was worried about selling her home on Fleetwood Street
and moving her children. When she and Jimmy signed the contract to purchase the Black
Cherry Lane house, Jimmy told her not to worry because the new house would be “our
home” and “everything is 50/50” because we “were married.”             The proceeds from
Christy’s home sale were used as a down payment for the new house on Black Cherry
Lane.

        Christy noticed at closing that the Black Cherry Lane house was titled only in
Jimmy’s name, and her name was not included in the paperwork. When Christy asked
about the omission of her name, Jimmy told her to “hush, we’ll talk about it later. . . .
Don’t worry, it’s 50/50” because “we were married.” Jimmy later told Christy that her
name was omitted because her unfavorable credit score would have increased the
mortgage interest rate by a quarter percent. The Uniform Residential Loan Application
of October 3, 2005 reflects that Jimmy applied for new home loan as an “unmarried.”
The general warranty deed for the Black Cherry Lane house is in Jimmy’s name alone,
and he is named as a “single person.”

        Christy and Jimmy opened a joint bank account with right of survivorship on
January 13, 2006. Christy testified that she only put money into the account; Jimmy was
in charge of the joint account, balanced the bank statements, and transferred money in
and out of the account at will. Christy testified that the joint account was not used to pay
general household bills because Jimmy “accidentally set up the household bills” on his
online account. Christy’s pay checks and child support checks were deposited into the
joint account; Jimmy transferred money out of the joint account into his personal account
to pay bills. Christy also testified that Jimmy paid her credit card bills and used her
Discover and Sears credit cards to make purchases and transfers. Christy did not have
access to Jimmy’s personal account and never had an ATM card linked to his account.

        According to Christy, Jimmy also filed the parties’ taxes. Christy trusted Jimmy
to take care of the taxes because he is an accountant. Jimmy never showed her the tax

                                             3
returns or asked her to sign them. Christy’s 2007 tax return was admitted into evidence;
it indicates that she filed as “head of household,” marital status “divorced.” Ashley’s
FAFSA2 application also was admitted into evidence; the box relating to Christy’s marital
status on the FAFSA indicated “Divorced/Separated” and the box relating to a
stepfather’s name and information was left blank. Christy testified that Ashley filled out
the form herself. Jimmy contended at trial that Christy filled out Ashley’s FAFSA
application.

       Christy testified that their neighbors on Black Cherry Lane knew Christy and
Jimmy “as a married couple.” Christy and Jimmy did “everything together as a couple,
everything . . . from grocery shopping to the kids’ fund-raisers.” Christy testified that she
and Jimmy worked many hours at the Toyota Center raising funds for the kids to go on a
school trip to California. In connection with this fundraising project, Christy and Jimmy
each attended a class and submitted information for a criminal background check.
According to Christy, she and Jimmy each filled out the necessary paperwork
individually. Although Christy could not remember if the paperwork inquired about
marital status, she did remember that the paperwork inquired about the signer’s
relationship to the child.

       Christy’s colleagues at work also assumed she was married because she wore a
wedding ring and “conducted [her]self as a married woman.” She and Jimmy went to
every company party together. Christy testified that Jimmy “identified” her as his wife
“more than once” during the four and a half years she and Jimmy were together,

       Christy testified that she was shocked when Jimmy told her in January 2009 that
“the relationship of the marriage” was over. She testified that Jimmy sent her an e-mail
containing what she considered to be an agreement regarding property division. She felt
pressured to buy the house from Jimmy because he said that it was his house and she did
not want to move her daughters before their senior year. She bought the house on April


       2
           FAFSA is the Free Application for Federal Student Aid.

                                                    4
1, 2009, and Jimmy moved out the next day. Christy acknowledged that she did not
protest to anyone during the 2009 closing that the deed identified both Jimmy and her as
a “single person.” She stated that she did not read the deed before signing it, and that she
would have signed anything at closing to keep her children in the home.

       Christy’s daughter, Teri Rae Thompson, testified that Jimmy moved into Christy’s
home on Fleetwood Street in 2005. Teri testified that Jimmy was her stepfather and that
he was introduced as her stepfather “any time” there was a school event. Jimmy was
introduced as Teri’s stepfather to her three band directors, her basketball coach, teachers,
and friends’ parents. Jimmy volunteered as Teri’s stepfather to be the liaison between
Exxon and Teri’s school band for fundraising purposes. According to Teri, Jimmy
personally introduced himself as her stepfather to her band director. Jimmy never said he
was not Teri’s stepfather and never objected to being called Teri’s stepfather.

       When asked if she had any documentation that would show that her mother and
Jimmy were married, Teri testified that there are school documents that had to be filled
out. She referred to several school papers including a criminal background check that
had to be filled out in order to participate in a school fundraiser at the Toyota Center.
Teri stated that parents, guardians, “aunts, uncles, stepmoms, stepdads, mother, father,
grandparents” could participate in the Toyota Center fundraiser, but that friends of the
family were not allowed to participate. Teri also testified that Christy told her “these are
my wedding rings purchased for me by [Jimmy].” Christy wore her rings “all the time”
and Jimmy also wore a gold wedding band.

       Christy’s mother, Audrey Hoover, testified that once Christy and Jimmy bought a
house together “for the two of them and the kids,” the family accepted and assumed that
they were married even though the parties never overtly said they had decided to get
married. Audrey believed they were married because Christy sold her home and they
bought a house together, had a bank account together, and took trips together. A birthday
card for Jimmy from Christy’s parents was introduced into evidence. The card identified
Jimmy as their “son-in-law.” Jimmy never said he was not Audrey’s son-in-law.

                                             5
       Christy’s father, Ronald Lee Hoover, testified that Christy brought Jimmy to the
Hoover’s house in 2005. By the time Christy and Jimmy built a house together, Ronald
“considered them to be common-law married.” Ronald testified that Christy and Jimmy
attended a Thanksgiving family gathering in 2005, at which Christy wore a wedding ring
and told her family that Jimmy had given her the wedding ring. Christy showed off her
wedding ring and the family was excited that “she did have a ring” and congratulated
both Christy and Jimmy. Ronald agreed that he knew that Christy and Jimmy were
“living together as man and wife” and “agree[d] to do the sorts of things together that
married people do together.” Ronald also testified that he heard Jimmy introduce himself
as Teri and Taylor’s stepfather at one of the school’s band fundraising events.

       Christy’s friend, Rachael Marie Hernandez, testified that she and Christy became
friends when they worked for the same company.               Rachael recalled that Christy
introduced Jimmy as her husband at the company’s Christmas party in 2007 or 2008.
Christy stated “This is my husband” and Jimmy and Rachael shook hands. Rachael
testified that Christy did not tell her she was married prior to the Christmas party because
“it never came up” and Rachael “always assumed” Christy was married because she wore
a wedding ring.

       The parties’ neighbor, Joshua Steven Bailey,3 testified that he met Jimmy in 2006
after moving into the house next door to Jimmy and Christy’s house on Black Cherry
Lane. Joshua testified that Jimmy introduced himself and told Joshua that he is living in
the house with “his wife, Christy,” and “the kids.” Joshua stated that Jimmy said ‘“I’m
[Jimmy] Bailey and my wife, Christy,’ and then the kids.” Joshua testified that once
Christy was introduced as “Mrs. Bailey, . . . it never came back up.” Joshua also testified
that, during a dinner with Christy, Jimmy, and Jimmy’s son, Joshua asked Jimmy’s son,
“How long have your mom and dad been married?” According to Joshua, Jimmy’s son
gave Joshua “a funny look” and said “about a year and-a-half.”


       3
           Jimmy and Joshua Steven Bailey are not related.

                                                    6
       Jimmy’s 25-year-old son, Joshua Bryant Bailey,4 testified that he came to live with
Jimmy and Christy in July 2006 and stayed with them until August 2007. Bryant testified
that, when he asked Jimmy and Christy if they were getting married, Christy personally
told Bryant that they would not get married because Ashley was receiving financial aid
and federal grants to go to school and because of inheritance “it would just end up too
complicated.” Bryant stated that he never observed Jimmy holding Christy out as his
wife or introducing her as his wife.

       Bryant also testified that he never had a conversation with neighbor Joshua about
Christy and Jimmy’s marital status. Bryant denied that Joshua ever asked him how long
Jimmy and Christy had been married; Bryant also denied ever telling Joshua that Jimmy
and Christy had been married for “about a year and-a-half.” Bryant admitted that he had
been arrested five times, but he denied ever being convicted of a felony.

       Jimmy testified that he lived with Christy in 2005 “from time to time during the
week, but [he] didn’t move in permanently with her until the [new] home was purchased
in April of 2006.” Jimmy testified that he stayed in his apartment in Houston during the
week and stayed with Christy on the weekends. Jimmy stated that he lived with Christy
for a brief time when his lease expired in January or February 2006; then he, Christy, and
the twins moved into a motel until the new house on Black Cherry Lane was built.

       Jimmy acknowledged that he and Christy had an agreement to buy a house
together and that both signed an agreement with Kimball Hill Homes to build a house.
He stated testified that he agreed to be “50/50 partners with” Christy, but he also testified
that the deed on the house was “made out to” him because it was his house. Jimmy
claimed that Christy sold her house because she “said she had a lot of troubles with the
house and she didn’t want the house anymore.”

       Jimmy testified that he bought an engagement ring for Christy “at her behest” in
August 2005. Jimmy knew at the time that Christy “was planning on using her own

       4
           We will refer to Joshua Bryant Bailey as “Bryant.”

                                                     7
diamond” for the engagement ring because she had told him. He testified he also bought
a wedding band because Christy “wanted the wedding band at the same time” as the
engagement ring.     Although he purchased a wedding set, Jimmy testified that the
“wedding band was for a later use.” When asked whether he ever objected to Christy
wearing the “wedding set,” Jimmy replied “Never noticed. Never paid any attention one
way or the other.” Jimmy claimed that Christy did not wear the wedding set consistently.

       Jimmy testified that he started paying the bills in 2006 at Christy’s request because
she did not like to pay bills. Jimmy testified that “money was moved around all the time”
with Christy’s permission and that he transferred his personal balances to Christy’s credit
card. According to Jimmy, Christy had full access to every account; Christy denied
having access to Jimmy’s account. Jimmy claimed he used Christy’s credit card only
when he went shopping with Christy but never alone. He stated that ATM deposits may
have gone into his account but that Christy’s checks were only deposited in the joint
checking account. Several checks that were payable to Christy but were deposited in
Jimmy’s personal account were admitted into evidence. Jimmy claimed that he did not
know who deposited these checks payable to Christy into his personal account.

       Jimmy testified he filed the parties’ tax returns; he claimed he used a computer
program and submitted all of Christy’s information “at her behest with her sitting there at
all times.” Christy denied being present when Jimmy filed the tax returns. Jimmy
testified that he filed the tax returns as “single” because he is not married; he never
claimed Christy as a spouse. During the entire time the parties lived together, the tax
returns were filed as “single” and “head of household.” Jimmy also testified that he
never claimed Christy was his wife on any job-related documents; he stated that his son
was designated as the beneficiary of his benefits.

       Jimmy claimed that he never agreed with Christy to be married and be “man and
wife.” Jimmy testified that the main reason he did not marry Christy was that “she did
not want to be married because her daughter received free financial aid and she did not
want to jeopardize that.” Jimmy acknowledged attending Christmas parties with Christy

                                             8
but stated that he did not know who Christy’s friend Rachael is. Also, he claimed that his
neighbor Joshua “stretched the truth” when he testified.

       The trial court signed an interlocutory judgment on January 27, 2011, finding that
an informal marriage existed and had commenced in September 2005. A bench trial was
held on March 4, 2011 on property division. The trial court signed a final decree of
divorce on March 25, 2011.        The trial court issued written findings of fact and
conclusions of law on April 25, 2011; the trial court found that Christy and Jimmy
“entered into an informal marriage on September 20, 2005;” “co-habited as husband and
wife in the state of Texas;” “agreed to be married;” and “held each other out in their
community, among their professional associates, in their families, and among their social
acquaintances as husband and wife.” Jimmy filed a timely notice of appeal.

                                         Analysis

       I.     Informal Marriage

       Jimmy argues in his first and second issues that the “trial court abused its
discretion because the evidence is factually and legally insufficient to establish that
Jimmy and Christy had an agreement to be married” and “held themselves out as being
married in the state of Texas.”

       The findings of fact in a bench trial have the same force and dignity as a jury
verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial
court’s findings of fact are reviewable for legal and factual sufficiency of the evidence by
the same standards as applied in reviewing the legal and factual sufficiency of the
evidence supporting a jury’s findings. Id.

       In a legal sufficiency review, we consider all of the evidence in the light most
favorable to the verdict and indulge every reasonable inference that would support it.
City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We consider evidence
favorable to the finding if a reasonable factfinder could and disregard evidence contrary
to the finding unless a reasonable factfinder could not disregard it. Id. at 827. The

                                             9
factfinder is the sole judge of the credibility of the witnesses and the weight to give their
testimony. Id. at 819.

       In a factual sufficiency review, we consider all the evidence for and against the
challenged finding and set it aside only if the evidence is so weak as to make the finding
clearly wrong and manifestly unjust. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402,
406–07 (Tex. 1998); Bush v. Bush, 336 S.W.3d 722, 730 (Tex. App.—Houston [1st Dist.]
2010, no pet.). In a bench trial, the trial court is the sole judge of the credibility of the
witnesses, assigns the weight to be given their testimony, may accept or reject all or any
part of their testimony, and resolves any conflicts or inconsistencies in the testimony.
Bush, 336 S.W.3d at 730.

       An informal marriage exists in Texas if the parties (1) agreed to be married, (2)
lived together in Texas as husband and wife after the agreement, and (3) there presented
to others that they were married. See Tex. Fam. Code § 2.401(a)(2) (Vernon 2006);
Small v. McMaster, 352 S.W.3d 280, 282 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied). 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. Small, 352 S.W.3d at 282-83. An informal marriage does
not exist unless all three elements are present. Id. at 283; Eris v. Phares, 39 S.W.3d 708,
713 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). The elements of an informal
marriage are determined on a case-by-case basis. See Estate of Claveria v. Claveria, 615
S.W.2d 164, 166 (Tex. 1981).

       Jimmy challenges the sufficiency of the evidence establishing the agreement to be
married and holding out; therefore, we will address only these two elements.

       1.     Agreement to be Married

       Jimmy argues that there is no evidence that the parties intended to have a present,
immediate and permanent marital relationship because “Christy presented herself as
single or married, depending on the situation and the benefit to her.” Jimmy further


                                             10
contends that he and Christy did not have an agreement to be married because, even
though Christy testified that “they entered into the informal marriage in the summer of
2005,” the “evidence was uncontroverted that Jimmy maintained an apartment in
Houston until 2006.” Jimmy also contends that Christy testified that the parties “agreed
to be married when she started wearing the wedding band” but that “this one event
changed each time Christy testified about it: Christy testified that it was a ‘surprise’ to go
to the jewelry store and that she ‘walked out of the store with a ring on her hand,’ even
though the engagement ring contained a diamond that Christy owned previously.”
Jimmy further argues that there was no evidence, other than Christy’s statements, tending
to establish that Jimmy agreed to be married.

       To establish an agreement to be married, “the evidence must show the parties
intended to have a present, immediate, and permanent marital relationship and that they
did in fact agree to be husband and wife.” Small, 352 S.W.3d at 283 (quoting Eris, 39
S.W.3d at 714). A proponent may prove an agreement to be married by direct or
circumstantial evidence or by conduct of the parties. Russell v. Russell, 865 S.W.2d 929,
933 (Tex. 1993). “Proof of cohabitation and representations to others that the couple are
married may constitute circumstantial evidence of an agreement to be married.” Id. The
testimony of one of the parties to the marriage constitutes some direct evidence that the
parties agreed to be married. Small, 352 S.W.3d at 283.

       At trial, Christy testified that she and Jimmy discussed being married “in the
summer of 2005” in August. After that, Jimmy bought Christy an engagement ring and
wedding band on August 20, 2005. Christy testified that she and Jimmy broke ground on
the home they bought together a month after Jimmy bought her engagement ring. She
testified that on that same day she was playing with the wedding band and put it on her
finger when Jimmy told her “you might as well wear the wedding ring, too.” Christy
testified that “it was agreed” that they were married, and that she and Jimmy “were
joining [their] lives together. According to Christy, the parties did not have a formal
wedding ceremony because they “had already been married before in the past” and “had

                                             11
done the ceremonies” and “didn’t have to go to a court to get married.”

       Jimmy testified that he never agreed with Christy to be married and be “man and
wife.” Jimmy claimed that the main reason he did not marry Christy was that “she did
not want to be married because her daughter received free financial aid and she did not
want to jeopardize that.” Christy contradicted Jimmy’s testimony and testified that she
did not give him any reason to think she did not want to be married.

       Jimmy’s son, Bryant, testified that he asked the parties in July 2006 if they were
planning on getting married and Christy told him that they would not get married because
Ashley was receiving financial aid and grants. Bryant denied that he ever told neighbor
Joshua that Jimmy and Christy had been married for “about a year and-a-half.”

       Jimmy also testified that he only stayed with Christy from time to time in 2005; he
claimed staying in his apartment in Houston during the week and only staying with
Christy on weekends. However, Christy claimed that Jimmy lived with her and her twins
since March 2005 and only moved out once for a 20-day period in June 2005. She
claimed that Jimmy maintained an apartment until January or February 2006 because he
“couldn’t break the lease.”

       Jimmy testified that he bought Christy an engagement ring “at her behest” in
August 2005. Jimmy claimed that he knew at the time that Christy “was planning on
using her own diamond” for the engagement ring because she had told him so. He
testified that he also bought a wedding band because Christy “wanted the wedding band
at the same time” as the engagement ring but that the “wedding band was for a later use.”
When asked whether he ever objected to Christy wearing the “wedding set,” Jimmy
replied “Never noticed. Never paid any attention one way or the other.” Jimmy never
denied wearing a wedding band himself.

       Jimmy claims on appeal that the parties did not intent to have a marital
relationship because (1) Christy knew the new home was “in Jimmy’s name and did not
complain because they got a better interest rate;” (2) when Christy bought the house from


                                           12
Jimmy in 2009, “the deed reflects that they were both single people;” (3) Christy filed her
2007 tax return as a single person; and (4) Christy knew Ashley’s application for
financial aid reflected that Christy was not married.

       However, Christy testified that she did question why her name was not included
on any documents at the 2006 closing after both parties signed the contract with the
builder. She testified that Jimmy told her “Hush, hush, hush. We’ll talk about it later. . .
. Don’t worry, it’s 50/50” because “we were married.” Christy acknowledged that, when
she bought the house from Jimmy in 2009, the deed reflected that she and Jimmy both
were “single.” She also stated that she “would have signed anything that day. My life
was falling apart that day. I would have done anything to keep my home, my kids in the
same home.” Christy also testified that she did not read the deed before signing it; she
was asked to sign the deed at the 2009 closing and she did.

       Regarding the tax returns, Christy testified that she and Jimmy had an agreement
that he would file the tax returns; she claimed she never was present when Jimmy
prepared the tax returns and never signed anything. Christy also testified that Ashley
filled out her financial aid application by herself.

       The evidence referenced by Jimmy goes to the weight afforded the evidence and
does not serve to negate an informal marriage. See Quinn v. Milanizadeh, No. 01-07-
00489-CV, 2008 WL 1828327, at *5 (Tex. App.—Houston [1st Dist.] Apr. 24, 2008, no
pet.) (mem. op.) (concluding that keeping separate bank accounts and filing tax returns as
single persons did not negate existence of informal marriage but went to the weight of the
evidence); In re Giessel, 734 S.W.2d 27, 31 (Tex. App.—Houston [1st Dist.] 1987, writ
ref’d n.r.e.) (concluding that proponent spouse’s denial of marriage in tax returns, social
security, driver’s license, bank, and pay records did not negate existence of informal
marriage but went to the weight of the evidence).

       Based on the evidence before us, we conclude that the evidence is legally
sufficient to support the trial court’s finding that Jimmy and Christy had an agreement to
be married.     And although the evidence is conflicting, it turns on the witnesses’

                                              13
credibility and demeanor; therefore, it was within the factfinder’s purview to resolve and
determine whether the parties agreed to be married. We cannot say the evidence of an
agreement to be married is so weak as to render the trial court’s finding clearly wrong
and manifestly unjust.

      Accordingly, we overrule Jimmy’s first issue.

      2.     Presenting to Others

      Jimmy argues that there is “some evidence that Christy held herself out as married,
but not in Texas” because “there was no testimony that any of the photos in which she
was wearing the ring were taken in Texas.” According to Jimmy, there is “a single
undated reference to Jimmy holding himself out to his neighbor as married. Other than
this one reference, there is no other reference tied to a date and the state of Texas.”
Jimmy also argues that “introducing Jimmy as her husband to a few people and wearing a
wedding ring constitute insufficient evidence that Christy was married — especially
considering that at other times, when it benefited her, she held herself out as a single
person and knew that he held himself out as a single person.”

      The statutory requirement of “presenting to others” is synonymous with the
judicial requirement of “holding out to the public.” Small, 352 S.W.3d at 284-85; Lee v.
Lee, 981 S.W.2d 903, 906 (Tex. App.—Houston [1st Dist.] 1998, no pet.). “Holding out”
may be established by the conduct and actions of the parties; “[s]poken words are not
necessary to establish representation as husband and wife.” Winfield v. Renfro, 821
S.W.2d 640, 648 (Tex. App.—Houston [1st Dist.] 1991, writ denied).            Occasional
introductions as husband and wife are not sufficient to establish the element of holding
out. Small, 352 S.W.3d at 285; see also Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361,
364 (1960) (evidence that couple was introduced as husband and wife to a few friends
and told two or three others that they were married was no evidence that they held
themselves out as married). “[T]he element of presenting to others requires both parties
to have represented themselves as married.” Small, 352 S.W.3d at 285.


                                           14
       Determining whether the evidence is sufficient to establish that a couple held
themselves out as husband and wife “turns on whether the couple had a reputation in the
community for being married.” Small, 352 S.W.3d at 285; see also Danna v. Danna, No.
05–05–00472–CV, 2006 WL 785621, at *1 (Tex. App.—Dallas Mar. 29, 2006, no pet.)
(mem. op.) (“The couple’s reputation in the community as being married is a significant
factor in determining the holding out element.”); In re estate of Giessel, 734 S.W.2d at 31
(holding that couple held themselves out as married when they had reputation in
community for being married even though they had kept marriage secret from a few
family members). “Proving a reputation for being married requires evidence that the
couple ‘consistently conducted themselves as husband and wife in the public eye or that
the community viewed them as married.’” Small, 352 S.W.3d at 285 (quoting Danna,
2006 WL 785621, at *2).

       Christy testified that Jimmy bought her an engagement ring on August 20, 2005.
A month later Jimmy told Christy to wear the wedding band too because “it was agreed”
that they were married. Christy testified that she always wore the wedding band from
that day on. Teri confirmed that Christy always wore her wedding band; Teri also
testified that Jimmy wore a wedding band. Jimmy did not deny wearing a wedding band.

       On September 15, 2005, Christy and Jimmy both signed a contract to purchase a
new house.     Christy testified that when they moved into the new house, all their
neighbors knew them “as a married couple.” Christy testified that she and Jimmy did
everything together as a couple . . . from grocery shopping to the kids’ fundraisers.”

       Christy testified that she and Jimmy worked many hours at the Toyota Center to
raise funds for Teri’s school trip. Prior to working at the Center, Jimmy and Christy each
filled out paperwork on which they were required to state that they were related to Teri.
Jimmy never denied filling out this paperwork or stating on the paperwork that he was
related to Teri. Teri confirmed that this paperwork needed to be filled out and that only
family members were allowed to work at the Center.

       Jimmy and Christy also opened a joint bank account with right of survivorship.

                                            15
Christy testified that Jimmy was in charge of the joint account, balancing the bank
statements, and paying the bills in general. Jimmy acknowledged that he freely moved
money in and out of accounts and that he transferred personal balances to Christy’s credit
card.

        Christy also testified that her co-workers assumed she was married because she
wore a wedding ring and “conducted [her]self as a married woman.” She stated that she
and Jimmy attended company parties every year together, and Jimmy confirmed going to
parties with Christy. When asked whether Jimmy identified her as his wife, Christy
answered: “over four and-a-half years, I’m sure he said it more than once. Can I tell you
exactly when? No, I cannot.”

        Teri testified that Jimmy was her stepfather and that he was introduced as her
stepfather “any time” there was a school event. Teri testified that Jimmy was introduced
as her stepfather to her three band directors, her basketball coach, teachers, and friends’
parents. He never said he was not Teri’s stepfather and never objected to being called
Teri’s stepfather; he even personally introduced himself as her stepfather to her band
director.   According to Teri, Jimmy volunteered as her stepfather to be the liaison
between Exxon and her school band for fundraising purposes.

        Christy’s mother, Audrey, testified that the family accepted and assumed the
parties were married; Audrey believed Jimmy and Christy were married because they
bought a home together, had a joint bank account, and took trips together. Audrey
confirmed sending a birthday card to Jimmy as her “son-in-law.” Audrey stated that
Jimmy never told her he was not her son-in-law.

        Christy’s father, Ronald, also considered the parties to be married. He recalled
that Christy showed off her wedding ring to her family at a Thanksgiving gathering in
2005. Ronald stated that the family was excited and congratulated Jimmy and Christy.
Ronald also testified that he heard Jimmy introduce himself as Teri and Taylor’s
stepfather at a school event.


                                            16
       Christy’s friend and former co-worker, Rachael, testified that Christy introduced
Jimmy as her husband at a company Christmas party and that Jimmy did not object to this
introduction. The parties’ neighbor, Joshua, testified that Jimmy introduced himself in
2006 and told Joshua that he lived next door with “his wife, Christy” and “the kids.”
Joshua also testified that Jimmy’s son Bryant told him that the parties had been married
for “about a year and-a-half.”

       Turning to the contrary evidence, Bryant denied ever telling Joshua that Christy
and Jimmy were married. Bryant testified that he never observed Jimmy holding Christy
out as his wife or introducing her as his wife. Bryant testified that Christy personally told
him in 2006 that they would not get married because Ashley was receiving financial aid
and federal grants to go to school.

       Ashley’s financial aid application was admitted into evidence; it reflects Christy’s
marital status as “Divorced/Separated.” The application also contained a blank box with
regard to any information relating to a stepfather. Jimmy claimed that Christy had filled
out Ashley’s application; Christy claimed that Ashley filled out the application by
herself.

       Jimmy testified that he never agreed to be married. He testified that he never
claimed Christy was his wife on any work-related document and that his son was his
designated beneficiary. Jimmy also testified that he never claimed Christy as a spouse on
his tax returns, but instead filed tax returns as “single” because he was not married.
Jimmy also claimed that he filed Christy’s tax returns as “single” at her direction “with
her sitting there at all times.” Christy denied being present when Jimmy filled out the tax
returns and stated that Jimmy was in charge of filing them. She stated that she never
signed any of the tax returns Jimmy prepared.

       Christy acknowledged that the deed to the Black Cherry Lane house was only in
Jimmy’s name. However, she testified that she questioned Jimmy as to why her name
was not included on any documents when they had both signed the home purchase
contract. She testified that Jimmy told her to “Hush, hush, we’ll talk about it later. . . .

                                             17
Don’t worry, it’s 50/50” because “we were married.” She also testified that Jimmy
explained that her name was not included on the paperwork because her unfavorable
credit score would have increased the interest rate by a quarter percent.

       Christy further acknowledged that, when she bought the home from Jimmy in
April 2009, the deed reflected that she and Jimmy were both “single.” However, she also
testified that she did not read the deed before signing it and would have signed “anything
that day” to keep her kids in the home.

       Jimmy admitted providing car insurance for his son as well as for Christy and her
twin daughters. He denied providing any other insurance for Christy or her family.
However, Christy testified that he paid for her health insurance one year when she missed
her enrollment date. A check from Jimmy payable to ERS was introduced into evidence
to support Christy’s assertion.

       Although several documents reflect the parties’ marital status as “single,” the
representations in these documents go to the weight of the evidence; they do not
necessarily negate a marriage. See Quinn, 2008 WL 1828327, at *5 (concluding that
keeping separate bank accounts and filing tax returns as single persons did not negate
existence of informal marriage but went to the weight of the evidence); In re Giessel, 734
S.W.2d at 31 (concluding that proponent spouse’s denial of marriage in tax returns, social
security, driver’s license, bank, and pay records did not negate existence of informal
marriage but went to the weight of the evidence).

       Having reviewed the record before us, we conclude that the evidence is legally
sufficient to support the trial court’s finding that Jimmy and Christy represented
themselves to others as married in the state of Texas. Although the evidence in this case
is conflicting, it turns on the witnesses’ credibility and demeanor. Therefore, it was
within the factfinder’s province to resolve and determine whether the parties represented
themselves to others as married. We cannot say the evidence of presenting to others as
married in the state of Texas is so weak as to render the trial court’s finding clearly
wrong and manifestly unjust.

                                             18
         Accordingly, we overrule Jimmy’s second issue.

         II.   Property Division

         In his third issue, Jimmy contends that the “trial court abused its discretion in
dividing [his] retirement account because the parties were not married” as he argued in
issues one and two and the trial court thus had no authority to characterize the parties’
property as community property and divide it. Alternatively, Jimmy contends that “the
evidence conflicted regarding the date of the ‘marriage.’ It was as early as the summer of
2005 or as late as the alleged holding out to the next-door neighbor, which occurred after
they moved into the house in April 2006.” Therefore, Jimmy argues that “[s]hould this
court find there was a common law marriage, but it occurred after September 20, 2005,
the property division should be reversed and remanded for a new division as of the later
date.”

         We already have concluded in issues one and two that legally and factually
sufficient evidence supports a finding that Jimmy and Christy were informally married.
Further, Jimmy does not argue that the evidence is legally and factually insufficient to
support a finding that the parties were informally married on September 20, 2005.
Rather, Jimmy argues that “the evidence conflicted regarding the date of the ‘marriage.’”
It is well established that in a bench trial the trial court is the sole judge of the credibility
of the witnesses, assigns the weight to be given their testimony, may accept or reject all
or any part of their testimony, and resolves any conflicts or inconsistencies in the
testimony. Bush, 336 S.W.3d at 730. It was within the province of the trial court to
resolve any conflict in the evidence “regarding the date of the ‘marriage.’” See City of
Keller, 168 S.W.3d at 820.

         Accordingly, we overrule Jimmy’s third issue.




                                               19
                                              Conclusion

      We affirm the trial court’s judgment.



                                                 /s/     William J. Boyce
                                                         Justice



Panel consists of Justices Seymore and Boyce and Senior Justice Yates.5




      5
          Senior Justice Leslie Brock Yates sitting by assignment.

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