Reversed and Remanded and Memorandum Opinion filed July 3, 2012.




                                        In The

                      Fourteenth Court of Appeals

                                 NO. 14-11-00346-CV

                              ROBERT RILEY, Appellant

                                          V.

                           KRISTINA YOUNG RILEY, Appellee


                       On Appeal from the 306th District Court
                              Galveston County, Texas
                          Trial Court Cause No. 10FD0123


                  MEMORANDUM                       OPINION


       Robert Riley petitioned for divorce from Kristina Young Riley, alleging the
existence of an informal marriage. The trial court signed a final summary judgment in
Kristina’s favor, ruling that Robert adduced no evidence that the couple represented to
others they were married. Robert contends the trial court erred because there is some
evidence that the couple represented to others they were married.           We agree.
Accordingly, the trial court’s summary judgment is reversed, and this case is remanded
for further proceedings.
                                            BACKGROUND

        Robert and Kristina ceremonially married in 1996 and divorced in 2000. The
couple continued to live together until May 2007. Robert sued Kristina for divorce in
2010, alleging the existence of an informal or common law marriage continuing after the
earlier divorce.

        Kristina moved for a partial traditional and no-evidence summary judgment,
contending the couple never agreed to be married and did not represent to others they
were married.       Kristina attached evidence indicating that she and Robert were not
married, including a deed of trust, a bond application for a motor vehicle dealer’s license,
and federal tax returns. Robert responded with evidence including his affidavit, an
affidavit from his mother, photographs of Kristina wearing a wedding ring, an email from
a friend, a magazine article, an invoice from a hotel, and a greeting card he received from
Kristina.    Kristina objected to the trial court’s consideration of much of Robert’s
evidence.

        On December 16, 2010, the trial court signed an order granting partial summary
judgment for Kristina. The court determined that there was no evidence the couple
represented to others that they were married, a required element of an informal marriage.
After the court severed some of Robert’s non-family law claims and nonsuited others, the
summary judgment became final. Before the trial court lost plenary power, the court
signed an “order on Kristina Riley’s objections to summary judgment evidence of Robert
Riley.” However, the order did not specifically sustain or overrule any of the objections.1
After its plenary power expired, the court issued a second order with the same title,
sustaining all of Kristina’s objections. Robert filed a timely notice of appeal.




        1
          The court stated that “the objections should be sustained or overruled as shown by the initials of
the Presiding Judge in the appropriate blanks on the objections and hereby incorporates by reference that
initialed version of the objections, attached below, into this document as the Order of this Court.” The
court did not attach any documents.

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                                            ANALYSIS

       In his first issue, Robert argues that the trial court erred by granting the summary
judgment for Kristina because there is some evidence the couple represented to others
they were married. In his second issue, Robert argues that the trial court’s order on
Kristina’s objections is void, but in any event, the court abused its discretion by
sustaining the objections.

       Kristina contends there is no evidence that she represented to others she was
married to Robert, and documentary evidence conclusively negates Robert’s allegation.
Kristina also contends that the trial court properly sustained her objections to Robert’s
summary judgment evidence while the court had plenary power, and Robert waived error
regarding the objections.

       Considering only the unobjected-to summary judgment evidence, we hold that
Robert has adduced more than a scintilla of evidence that the couple represented to others
they were married.2

I.     Standard of Review

       We review summary judgments de novo. Raynor v. Moores Mach. Shop, LLC,
359 S.W.3d 905, 907 (Tex. App.—Houston [14th Dist.] 2012, no pet.). We take as true
all evidence favorable to the nonmovant, indulging reasonable inferences and resolving
doubts in the nonmovant’s favor. Id.

       For a traditional summary judgment, the movant has the burden of showing there
is no genuine issue of material fact and that the movant is entitled to judgment as a matter
of law. Tex. R. Civ. P. 166a(c); Raynor, 359 S.W.3d at 907. A defendant may meet this
burden by conclusively negating an essential element of the plaintiff’s claim of an
informal marriage. See Raynor, 359 S.W.3d at 907.

       “We sustain a no-evidence summary judgment when (a) there is a complete

       2
         Accordingly, we need not address the arguments regarding objections to the summary judgment
evidence. See Tex. R. App. P. 47.1.

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absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove a vital fact, (c) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact.” Id. at 907–08 (citing King Ranch,
Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)). This is a legal sufficiency standard.
See King Ranch, 118 S.W.3d at 750–51.

       Evidence is “conclusive” only if reasonable people could not differ in their
conclusions. Raynor, 359 S.W.3d at 907. There is “more than a mere scintilla” of
evidence if reasonable and fair-minded people could differ in their conclusions. Id. at
908.

II.    Informal Marriage

       To prove an informal marriage, i.e., a common law marriage, Robert must prove
that he and Kristina (1) agreed to be married; (2) lived together as husband and wife in
Texas; and (3) represented to others they were married in Texas. See Tex. Fam. Code
Ann. § 2.401(a)(2) (Vernon 2006); Small v. McMaster, 352 S.W.3d 280, 283 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied). The third element is also known as
“holding out to the public.” Small, 352 at 284–85.

       “Holding out” may be shown 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); see
Small, 352 S.W.3d at 285. The issue of whether 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. “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.’” Id. (quoting Danna v.
Danna, No. 05-05-00472-CV, 2006 WL 785621, at *2 (Tex. App.—Dallas Mar. 29,
2006, no pet.) (mem. op.)). “Occasional introductions as husband and wife are not
sufficient to establish the element of holding out.” Id. This element “requires both

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parties to have represented themselves as married.” Id.

       The unobjected-to testimony from Robert’s affidavit included the following
statements:

              “[W]e referred to each other publicly as husband and wife all the
              time — it was so often that I cannot list out each time it happened.”
              “I always introduced Kristi as my wife, and she never objected.”
              “After we agreed to be married again in April 2000, Kristi publicly
              wore her wedding ring for many years.”
              “Even after we separated, we registered at a hotel as husband and
              wife when we were trying to reconcile . . . .”
              “We maintained a joint checking account, bought houses together as
              husband and wife, and we commingled our cash and assets.”

       This evidence is more than a mere scintilla that Robert and Kristina both
represented to others that they were married.       Although it may be prudent for the
proponent of an informal marriage to have multiple, unbiased witnesses testify about the
protesting spouse’s representations of marriage, such evidence is not required for the
proponent to avoid a no-evidence summary judgment. Compare id. at 285–86 (evidence
factually insufficient when multiple family members and friends of the proponent spouse
testified that the protesting spouse told others that they were married; noting that “all of
the witnesses who testified to the representations” were the proponent’s), and Winfield,
821 S.W.2d at 648–49 (evidence legally sufficient but factually insufficient when
evidence of holding out consisted of the protesting spouse paying for a hotel in the name
of “Mr. and Mrs. [protesting spouse],” and the proponent spouse lived in a condominium
that had the protesting spouse’s last name on the mailbox, about which the protesting
spouse knew but did not object), with Martinez v. Lopez, No. 01-09-00951-CV, 2011 WL
2112806, at *5 (Tex. App.—Houston [1st Dist.] May 26, 2011, no pet.) (mem. op.)
(evidence legally sufficient when the proponent spouse testified that she introduced the
protesting spouse as her husband and that the protesting spouse represented that the
proponent spouse was his wife to all of their friends and family), Quinn v. Milanizadeh,


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No. 01-07-00489-CV, 2008 WL 1828327, at *6–7 (Tex. App.—Houston [1st Dist.] Apr.
24, 2008, no pet.) (mem. op.) (evidence legally sufficient when the proponent spouse’s
friend testified that she thought the couple was married and that she never heard the
protesting spouse deny being married, and the proponent spouse testified that the
protesting spouse referred to the proponent as his wife to friends and family), and Eris v.
Phares, 39 S.W.3d 708, 715 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)
(evidence legally sufficient when several of the proponent spouse’s friends and
employees testified that they thought the couple was married, and the proponent spouse
testified that he introduced the protesting spouse as his wife without her contradicting
him).

        Kristina suggests the most analogous case is Smith v. Deneve, 285 S.W.3d 904
(Tex. App.—Dallas 2009, no pet.). Smith affirmed a no-evidence summary judgment
when the proponent spouse testified, “After Mary accepted my ring, we began to
introduce each other as husband and wife . . . . When we have been out together, we have
been introduced by others as husband and wife and neither Mary or I would tell anyone
that we were not husband and wife.” Id. at 909–10. Smith held there was no evidence of
holding out in part because the proponent spouse “adduced no evidence as to whether
these events were common or rare.” Id. at 910. In contrast, Robert stated in his affidavit
that he and Kristina made such representations “all the time — it was so often that I
cannot list out each time it happened.” Robert “always” introduced Kristina as his wife
without her objecting, and Kristina wore a wedding ring “for many years.” This evidence
in particular distinguishes Smith and supports a rational conclusion that Kristina
consistently represented to the public that she was married to Robert. See Martinez, 2011
WL 2112806, at *5 (evidence legally sufficient when the proponent spouse “testified that
she introduced Martinez as her husband and that he represented that she was his wife to
all of their friends and family”).

        Kristina cites other cases, but unlike the statement in Robert’s affidavit, those
cases included only isolated instances of holding out. See Danna, 2006 WL 785621, at


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*1–2 (no evidence of holding out when the protesting spouse told one witness that the
proponent spouse was his wife; the protesting spouse introduced the proponent as his
wife on one occasion; and the proponent spouse introduced the protesting spouse as her
husband in the presence of the protesting spouse on one occasion without him objecting);
Nichols v. Lightle, 153 S.W.3d 563, 571 (Tex. App.—Amarillo 2004, pet. denied) (no
evidence of holding out when proponent spouse testified that the protesting spouse told at
least one other person that they were married); Lee v. Lee, 981 S.W.2d 903, 907 (Tex.
App.—Houston [1st Dist.] 1998, pet. denied) (no evidence of holding out when the
proponent spouse told a few friends and business customers that they were married;
protesting spouse did not make any affirmative representations of marriage); Flores v.
Flores, 847 S.W.2d 648, 653–54 (Tex. App.—Waco 1993, writ denied) (no evidence of
holding out when the protesting spouse introduced the proponent as his wife on one
occasion and once referred to the proponent as his wife; an occasional reference to the
proponent as his wife was ambiguous in context because she was his ex-wife). Robert’s
affidavit indicates that Kristina’s representations to others were not isolated events.

       Finally, Kristina points to a deed, a bond application for a motor vehicle dealer’s
license, and federal tax returns indicating that Robert identified himself as being single or
unmarried during the relevant time period. This evidence does not conclusively negate
the holding out element, especially when there is no evidence that these representations
were disseminated in the community. See In re Giessel, 734 S.W.2d 27, 31 (Tex. App.—
Houston [1st Dist.] 1987, writ ref’d n.r.e.) (proponent spouse’s “representations in tax
returns and other documents that she was single go to the weight of the evidence; they do
not negate a marriage, as a matter of law”); see also Martinez, 2011 WL 2112806, at *5
(evidence of holding out was sufficient despite the protesting spouse purposefully leaving
the proponent’s name off various financial transactions and filing federal tax returns as
“single”); Hundle v. Nigh, No. 14-94-01145-CV, 1996 WL 65381, at *5 (Tex. App.—
Houston [14th Dist.] Feb. 15, 1996, no writ) (not designated for publication) (evidence of
holding out was sufficient despite documentary evidence, such as tax returns and a


                                              7
warranty deed, indicating the proponent spouse and decedent were single); cf. Smith, 285
S.W.3d at 910 (discounting the proponent spouse’s evidence of contracts that listed the
couple as husband and wife in part because “there is no evidence that anyone in the
community ever saw those contractual representations”); Danna, 2006 WL 785621, at *2
(discounting the protesting spouse’s references to “wife” in Valentine card and “spouse”
in AARP enrollment form because there was “no evidence that anyone in the community
saw the card or the AARP form”). But see Small, 352 S.W.3d at 286 (evidence was
factually insufficient on the element of holding out, considering in part that the proponent
spouse filed federal income taxes as “single”). At best, this evidence conflicts with
Robert’s evidence of holding out, and there is a genuine issue of material fact.

          Accordingly, Robert’s first issue is sustained.

                                              CONCLUSION

          Concluding that Robert presented more than a mere scintilla of evidence on the
holding out element of an informal marriage, and there is a genuine issue of material fact,
we reverse the trial court’s judgment and remand for further proceedings.




                                                  /s/       William J. Boyce
                                                            Justice



Panel consists of Justices Seymore and Boyce and Senior Justice Yates.3




3
    Senior Justice Leslie Brock Yates sitting by assignment.


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