                       In The
                 Court of Appeals
   Sixth Appellate District of Texas at Texarkana
           ______________________________

                 No. 06-10-00014-CV
           ______________________________



IN THE ESTATE OF DAVID CHARLES LANDERS, DECEASED




         On Appeal from the County Court at Law
                   Cass County, Texas
             Trial Court No. CCL-09-P-0019




        Before Morriss, C.J., Carter and Moseley, JJ.
          Memorandum Opinion by Justice Carter
                                        MEMORANDUM OPINION

         The May 22, 2003, will of David Charles Landers stated ―[a]t the time of the execution of

this Will, I am not married and I have two children . . . . I also have a very close relationship with

Frances Dale Lyles.‖ Landers and Lyles were ceremonially married on August 23, 2003, after the

will was executed. The trial court found that Landers was married by common law to Lyles as of

July 12, 1993.1 The will was construed based on the finding that a common-law marriage existed

and, therefore, the property acquired during the marriage was community property. Landers’ son,

David Landers,2 and daughter, Lisa McRorey, appeal this finding, arguing that the evidence was

insufficient to support the finding of a common-law marriage. Because we find the evidence

legally and factually sufficient, we affirm the court’s judgment.

I.       Standard of Review

         In conducting this legal sufficiency review, we view the evidence in a light most favorable

to the judge’s fact finding, and will indulge every reasonable inference that supports it to

determine ―whether the evidence at trial would enable [a] reasonable and fair-minded [judge] to

reach the [finding] under review.‖ City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex.

2005); Walker & Assoc. Surveying, Inc. v. Austin, 301 S.W.3d 909, 916 n.4 (Tex.


1
 The Texas Family Code recognizes marriages without formalities. Included in such marriages are relationships
which Texas law has classified as common-law marriages. TEX. FAM. CODE ANN. § 2.401(a)(2) (Vernon 2006). In
this opinion, we will use the ―common-law‖ marriage terminology.
2
For clarity, David Charles Landers will be referred to as Landers, while his son, David Landers, will be referred to as
David.

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App.––Texarkana 2009, no pet.). We credit favorable evidence if a reasonable trial judge could,

and disregard contrary evidence unless a reasonable judge could not. Wilson, 168 S.W.3d at 822,

827; Austin, 301 S.W.3d at 916 n.4.

        In contrast, when conducting a factual sufficiency review, we consider all the evidence in

the record, both supporting and conflicting, and will set aside the verdict only if it is so contrary to

the overwhelming weight and preponderance of the evidence that it is clearly wrong and

manifestly unjust. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Walker,

301 S.W.3d at 916 n.4 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). In an

appeal from a bench trial, we do not invade the fact-finding role of the trial court, which alone

determines the credibility of the witnesses, the weight to give their testimony, and whether to

accept or reject all or any part of that testimony if the evidence falls within the zone of reasonable

disagreement. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580–81 (Tex. App.––Houston [1st

Dist.] 1997, pet. denied).

II.     Establishing Common-Law Marriage

        The existence of a common-law marriage is a question of fact that the proponent of the

marriage has the burden to prove through direct or circumstantial evidence. Lewis v. Anderson,

173 S.W.3d 556, 559 (Tex. App.––Dallas 2005, pet. denied) (citing Russell v. Russell, 865 S.W.2d

929, 933 (Tex. 1993)). In Texas, common-law marriage exists where ―the man and woman

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



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and there represented to others that they were married.‖ TEX. FAM. CODE ANN. § 2.401(a)(2). In

this case, Lyles had to prove: (1) there was an agreement between her and Landers to be married;

(2) they cohabitated in Texas as husband and wife; and (3) represented to others that they were

married. Russell, 865 S.W.2d at 932. Additionally, because the date of the common-law

marriage is critical to the property division in this case (and the finding made by the court), there

must be sufficient evidence to show that the relationship was established as of July 12, 1993. See

Winfield v. Renfro, 821 S.W.2d 640, 646–48 (Tex. App.––Houston [1st Dist.] 1991, writ denied)

(―A common law marriage does not exist until the concurrence of all three elements.‖).

III.   Sufficient Evidence Established Landers’ Common-Law Marriage to Lyles

       A.      Agreement 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.‖ Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App.––Houston [1st Dist.] 2001,

pet. denied). The testimony of one of the parties to the marriage constitutes direct evidence that

the parties agreed to be married. Id.

       Lyles and Landers both owned separate homes prior to 1993, the year in which they met.

Lyles testified that she agreed with Landers to be informally married prior to their cohabitation on

July 12, 1993, and that they celebrated this date as their marriage anniversary each year. Lyles’




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testimony was direct evidence of an agreement to be married as of July 12, 1993. See id.; In re

Estate of Giessel, 734 S.W.2d 27, 32 (Tex. App.––Houston [1st Dist.] 1987, writ ref’d n.r.e.).3

         Conduct of the parties, evidence of cohabitation, and representations to others may

constitute additional circumstantial evidence of an agreement, depending on the facts of the case.

See Russell, 865 S.W.2d at 933; Eris, 39 S.W.3d at 714. Thus, even if evidence of an express

agreement to marry was not offered, the trial judge could treat the facts discussed in the remainder

of the opinion as circumstantial evidence of the agreement in order to find a tacit agreement to be

married. Russell, 865 S.W.2d at 932.

         B.       Cohabitation

         Lyles claimed Landers decided to enter into a ceremonial marriage ―[b]ecause we had been

together for ten years and he didn’t want me left by myself without anything and I didn’t want him

left by his self without anything.‖ In addition, Lyles stated that she lived with Landers from 1993

until his death. Landers’ attorney, James Hurst, testified that he met the parties on November 4,

2002, and ―verified that a common law marriage had occurred, at least that date or before.‖4 He


3
 David and McRorey argue that because Lyles’ testimony was not corroborated by other evidence, it was insufficient.
They cite to the statement that ―[i]f one of the parties is dead, the survivor will be required to meet the limitation
imposed by Rule 601(b) of the Texas Rules of Evidence by providing corroboration of an alleged transaction with the
decedent.‖ Russell, 865 S.W.2d at 932. Rule 601(b) is a rule of evidence governing admission of statements made
by the decedent. Failure to object to the statement waives the exclusionary provisions of the Dead Man’s Statute.
Voigt v. Underwood, 616 S.W.2d 266, 269 (Tex. Civ. App.—San Antonio 1981, writ ref’d n.r.e.). Because no
objection to Lyles’ testimony was made, we will not address the Rule 601(b) argument. TEX. R. EVID. 103(a)(1).
4
 Landers had previously executed a 1999 will leaving property to Lyles. His attorney testified, ―[Landers’] intent
throughout this was to be sure that [Lyles] was taken care of. He had had a very up-and-down relationship with his
kids.‖

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noted that the couple ―had been living together for a long time.‖ McRorey testified that Landers

informed her that he was living with Lyles prior to the ceremonial marriage, and a 1999 letter

addressed to Lyles was sent to the address of the home the couple shared.

       C.      Holding Out

       The statutory requirement of ―represented to others‖ is synonymous with the judicial

requirement of ―holding out to the public,‖ and may be established by conduct and actions of the

parties. Winfield, 821 S.W.2d at 648 (spoken words are not necessary to establish representation

as husband and wife).

       Lyles stated she and Landers represented to the public that they were married by calling

each other husband and wife as of 1993. ―Everyone knew that we were together and had been

together. We lived together. We shared everything. We paid bills together. We both worked

together.‖ A 2001 warranty deed, filed prior to the parties’ ceremonial marriage in 2003 listed

Landers as ―a married person.‖ Hurst also noted that Landers held himself out as married during

his 2002 meeting with the couple.

       D.      Contrary Evidence

       David and McRorey argue that Landers and Lyles could not have entered into an

agreement to be married, and did not represent to others that they were married, because they were

not informed of the marriage relationship. Due to hard feelings developed from Landers’ divorce

from David’s mother, David was estranged from Landers from 1988 until 2000 or 2001. He first



                                                6
learned of Lyles in 2003, and claimed that his father only told him they were married at that time.5

He believed his father was in a relationship with Rosie DeLeon in 2000 or 2001 ―[b]ecause when

he was in town he stayed with Ms. DeLeon. And every meeting I had with him she was present.‖

McRorey was incarcerated on a drug possession conviction from 1998 until 2007. She met Lyles

in 1997, prior to imprisonment. Both McRorey and her daughter, Courtney Saucedo, claimed that

Landers introduced Lyles as his girlfriend and that neither was aware they had been married until

sometime after the ceremonial marriage.

            As to the element of cohabitation, Saucedo came to visit Landers in a farmhouse in 1996

when she was twelve years old and believed that Landers’ former girlfriend, Karen Huskill, was

living there at the time. Lyles testified that she lived with Landers in the farmhouse during the

first year they lived together. Thereafter, they moved to another home. According to Lyles,

Huskill was the former girlfriend of Landers and the ―land was in Ms. Hukill’s [sic] name but

actually owned by Mr. Landers‖; the farmhouse was conveyed to Landers by Huskill in 1994.

            To support the theory that the parties were not cohabitating, McRorey also stated that Lyles

―had her own place.‖ Lyles did own a residence until it burned down in a fire in 1997. Although

McRorey testified she believed Lyles was not living with her father, McRorey contradicted her

testimony by later saying that her father said ―[b]asically they lived together‖ during this time

period.

            E.       Analysis
5
    David also testified that he did not meet Lyles until 2005.

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       Viewing the evidence in a light most favorable to the trial court’s fact finding, we

conclude, based on Lyles and Landers’ attorney’s testimony and documentary evidence, that a

reasonable and fair-minded fact-finder could conclude that Landers and Lyles were married in

accordance with the common-law requirements as of July 12, 1993.               The trial court, as

fact-finder, was free to give less weight to David’s, McRorey’s, and Saucedo’s testimony.

       Again, they argued that Lyles could not prove that there was an agreement to be married

and that the element of holding out to the public as married could not be met because the

immediate family did not have knowledge of the marriage relationship. The court in Giessel

rejected a similar argument presented by ―cousins and their spouses‖ who were unaware that

Giessel was living with Kuchera, found to be his common-law wife. 734 S.W.2d at 30, 32

(fact-finder was free to place less weight on testimony from Giessel’s relatives that ―Giessel never

brought or talked about Kuchera on the several occasions that he attended family functions‖).

That the agreement to be married was unannounced to an estranged son, long-time incarcerated

daughter, and twelve-year-old grandchild did not persuade the trial court that an agreement to

marry did not exist. Given documentary evidence in the form of deeds listing Landers as married

and testimony from Landers’ attorney that the couple was married prior to the ceremonial

marriage, the court was free to discount contrary testimony attempting to negate the elements of an

agreement to be married and holding out to the public as married.




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       As to the issue of cohabitation, the trial court was free to believe Lyles’ testimony. While

there was conflicting evidence on the issue, the trial court heard the witnesses testify and had the

opportunity to judge their credibility and resolve the conflicting evidence.

       Because we will not substitute our opinion for that of the trial judge, we cannot conclude

that a finding that Landers and Lyles were common-law married as of July 12, 1993, was so

contrary to the overwhelming weight and preponderance of the evidence that it was clearly wrong

and manifestly unjust. We find the evidence both legally and factually sufficient.

       We affirm the judgment of the trial court.




                                              Jack Carter
                                              Justice

Date Submitted:        August 4, 2010
Date Decided:          September 1, 2010




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