Affirmed in part, Reversed and Remanded in Part, and Memorandum
Opinion filed August 9, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00653-CV

    IN THE MATTER OF THE MARRIAGE OF MARIA SOLORZANO
     FARJARDO AND GUILLERMO NUNEZ FAJARDO AND IN THE
     INTEREST OF J.A.F., M.F., D.F., AND N.F., MINOR CHILDREN


                    On Appeal from the 311th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2013-44200

                  MEMORANDUM OPINION
      This is an appeal from an order granting Appellee Guillermo Nunez
Fajardo’s plea to the jurisdiction and motion to dismiss for lack of jurisdiction
based on Appellant Maria Solorzano Fajardo’s lack of standing to bring a petition
for divorce from common-law marriage. The underlying case included a petition
for divorce and a suit affecting the parent-child relationship (SAPCR). Maria raises
four issues on appeal, alleging the trial court erred by: (1) granting the defendant’s
plea to the jurisdiction; (2) finding no genuine issue of material fact of common-
law marriage; (3) finding Maria failed to overcome the presumption in section
2.401(b) of the Texas Family Code; and (4) refusing to allow Maria to make an
offer of proof. No issue was raised regarding the final order in the SAPCR.

      We conclude that the trial court erred in granting Guillermo’s plea to the
jurisdiction, and reverse and remand that portion of the judgment for additional
proceedings on the merits. We affirm the portion of the judgment regarding the
SAPCR. We do not reach Maria’s fourth issue on appeal.

                              I.    BACKGROUND

      Maria and Guillermo met in 2000 and had four children together, born in
2001, 2003, 2008 and 2013. Guillermo has a total of eleven children by seven
different women. In July 2013, shortly after their last child was born, Maria filed a
petition for divorce and SAPCR. A hearing was held in front of Associate Judge
Robert Newey on the preliminary issue of whether a common-law marriage
existed. Judge Newey found that Maria and Guillermo did have a common-law
marriage. Judge Newey’s ruling was appealed and a de novo hearing was granted.

      Judge Doug Warne presided at the de novo hearing. At the hearing,
Guillermo’s counsel urged the court to grant a plea to the jurisdiction and motion
to dismiss for lack of standing, arguing that Maria lacked standing to bring the
divorce suit because no common-law marriage existed between he and Maria. On
request from Maria’s counsel, Judge Warne took judicial notice of the transcript
from the underlying proceedings before Judge Newey, but he refused to take
judicial notice of the exhibits from that proceeding.

      The facts regarding the common-law marriage were disputed at the hearing.
Maria testified she believed Guillermo agreed to marry her. Maria claimed she
began living with Guillermo in 2000 at 10327 Bowman, and they continued living


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together until December of 2012. Maria also claimed 1905 First Street is the last
address she lived at with Guillermo and that the First Street address was her
current residence at the time of the hearing. Maria testified that from 2000 to 2003
Guillermo introduced her as his wife “many times.” Guillermo and Maria also had
a joint bank account. Additionally, Maria produced tax returns from 2004, 2006,
and 2007, which have her listed as Guillermo’s spouse. However, the tax returns
are only signed by the preparer and not by Guillermo or Maria.

      Guillermo admitted that he filed tax returns with Maria. However, he
testified that he never agreed to be married to Maria, never lived with her, and
never told people she was his wife. When asked if he ever got divorced from
Maria, Guillermo responded “I was never married to her.” Guillermo gave
conflicting testimony about living at 10327 Bowman and about living at 1905 First
Street. 1905 First Street was the address listed on Guillermo’s driver’s license at
the time of the hearing. Guillermo also produced evidence that he was
ceremonially married to Angelica Peralta on August 16, 2005. Several other
witnesses testified, some supporting Maria’s version of the facts and some
supporting Guillermo’s version of the facts.

      At the conclusion of the hearing Judge Warne found that Maria had failed to
rebut the presumption in section 2.401 of the Family Code, and therefore, it was
presumed that there was no agreement to be married and no common-law marriage
between Maria and Guillermo. Judge Warne granted Guillermo’s plea to the
jurisdiction and dismissed the divorce portion of Maria’s cause of action for lack of
jurisdiction based on lack of standing. Judge Warne retained the SAPCR. A final
order in the SAPCR was signed on February 16, 2015, and a notice of appeal was
timely filed on March 17, 2015.



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                           II.   STANDARD OF REVIEW

      Section 2.401 of the Family Code authorizes a judicial proceeding to prove
an informal marriage. Tex. Fam. Code Ann. § 2.401 (West 2006). Although
Guillermo filed a plea to the jurisdiction arguing that Maria did not prove the
elements of informal marriage under section 2.401, Guillermo did not identify any
cases holding that such a failure deprives the trial court of subject-matter
jurisdiction.1 Yet even assuming (as the parties do) that a plea to the jurisdiction is
a proper vehicle to make such an argument, we conclude that the plea fails because
Maria presented more than a scintilla of evidence of each element.

      Standing is a required element of subject-matter jurisdiction. Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000).Without subject-matter
jurisdiction a court lacks the plenary power to decide the merits of a case. Id.
Whether a court has subject-matter jurisdiction is a question of law reviewed de
novo. Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004).

      A trial court may consider evidence when necessary to resolve jurisdictional
issues. Bland, 34 S.W.3d at 555. When a jurisdictional challenge implicates the
merits of the case, the trial court may review the evidence to determine if a fact
issue exists. Tex. Dep't of Parks & Wildlife, 133 S.W.3d at 227. If the evidence
creates a question of fact, the trial court cannot grant the plea to the jurisdiction. Id.
at 227–28. A dismissal for lack of jurisdiction on a contested factual issue is only
appropriate if the issue is proven as a matter of law. Id. This standard mirrors the
standard of review for summary judgment. Id. at 228; see Tex. R. Civ. P. 166a(c).



1
 Almeida v. Estrada, holds dismissal is improper in that circumstance. No. 04-05-00255-CV,
2006 WL 2818067, at * 2 (Tex. App.—San Antonio Oct. 4, 2006).

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                      III.   COMMON-LAW MARRIAGE

      To prove an informal or common-law marriage, the proponent of the
marriage must prove the parties “agreed to be married and after the agreement they
lived together in this state as husband and wife and there represented to others that
they were married.” Tex. Fam. Code Ann. § 2.401(a)(2).

      Two presumptions in the Family Code are relevant to the facts of this case.
See Tex. Fam. Code Ann. §§ 1.102, 2.401 (West 2006). Section 2.401 of the
Family Code provides that if a proceeding to establish the existence of a common-
law marriage “is not commenced before the second anniversary of the date on
which the parties separated and ceased living together, it is rebuttably presumed”
that there was no agreement to be married. Tex. Fam. Code Ann. § 2.401(b).

      Section 1.102 of the Family Code provides that “[w]hen two or more
marriages of a person to different spouses are alleged, the most recent marriage is
presumed to be valid as against each marriage that precedes the most recent
marriage until one who asserts the validity of a prior marriage proves the validity
of the prior marriage.” Tex. Fam. Code Ann. § 1.102. Texas recognizes common-
law marriage, but does not recognize common-law divorce or annulment. Estate of
Claveria v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981). A common-law marriage,
like a ceremonial marriage, can terminate only by death, divorce, or court-ordered
annulment. Id.

      The effect of these presumptions is to force the party against whom they
operate to produce evidence to negate the presumptions. See Gen. Motors Corp. v.
Saenz, 873 S.W.2d 353, 359 (Tex. 1993). The party with the burden of rebutting
the presumptions must come forward with more than a scintilla of evidence, or the
presumptions will operate to disprove the common-law marriage as a matter of


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law. See Amayé v. Oravetz, 57 S.W.3d 581, 584 (Tex. App.—Houston [14th Dist.]
2001, pet. denied).

                                 IV.    ANALYSIS

      Maria’s first three issues are that trial court erred by: (1) granting the
defendant’s plea to the jurisdiction; (2) finding no genuine issue of material fact of
common-law marriage; and (3) finding Maria failed to overcome the presumption
in section 2.401(b) of the Texas Family Code. Because the analysis of these issues
is intertwined, we address them collectively.

      A court may review evidence on the merits when necessary to determine a
jurisdictional issue, but may not grant a plea to the jurisdiction if the evidence
raises a question of fact. Tex. Dep't of Parks & Wildlife, 133 S.W.3d at 227–28.

      Maria filed a petition for divorce on July 30, 2013. Guillermo challenged
Maria’s standing to bring the petition under section 2.401 of the Texas Family
Code, alleging that there was a presumption that there was no agreement to be
married, and there was insufficient evidence that the couple held themselves out as
married. See Tex. Fam. Code Ann. § 2.401. Maria asserted that the couple lived
together until December of 2012, which was less than two years before she filed
for divorce in July of 2013. Guillermo claimed he never lived with Maria. Because
conflicting evidence was presented as to the date of separation, it is unclear that the
statutory presumption applied to the determination of standing. However, assuming
the presumption did apply, Maria presented more than a scintilla of evidence on
the element of agreement (as discussed below), which was sufficient to rebut the
presumption.

      Maria testified that she believed Guillermo agreed to be married, that she
lived with Guillermo from 2000 to 2012, and that Guillermo introduced her as his


                                          6
wife on several occasions. Maria also presented tax returns showing Maria as
Guillermo’s spouse. Although this evidence was contested, no evidence was
presented that disproved a common-law marriage between Maria and Guillermo as
a matter of law. Therefore, the evidence presented a question of fact on the
existence of a common-law marriage between Guillermo and Maria. See Russell v.
Russell, 865 S.W.2d 929, 933 (Tex. 1993) (holding that agreement to be married
can be proven circumstantially by proof of cohabitation and representations to
others that the couple is married); Small v. McMaster, 352 S.W.3d 280, 282–83
(Tex. App.—Houston [14th Dist.] 2011, pet. denied) (“The existence of an
informal marriage is a fact question . . . .”); Eris v. Phares, 39 S.W.3d 708, 714
(Tex. App.—Houston [1st Dist.] 2001, pet. denied) (holding that testimony of a
party of an agreement to be married was more than a scintilla of evidence of
agreement).

      Guillermo’s ceremonial marriage to Angelica in 2005, although presumed
valid, also did not negate the elements of a prior common-law marriage to Maria.
See Tex. Fam. Code Ann. § 1.102; Claveria, 615 S.W.2d at 165–66. As noted,
Maria presented some evidence on all elements required for a common-law
marriage. Additionally, Guillermo admitted he had never divorced Maria. This
evidence was sufficient to raise a question of fact on the existence of an alleged
prior common-law marriage to Maria. See Claveria, 615 S.W.2d at 166.

      Because Maria presented more than a scintilla of evidence supporting all
three elements of common-law marriage, and Guillermo produced no evidence that
conclusively disproved these elements as a matter of law, a question of fact was
raised as to the existence of a common-law marriage. Because there was a question
of fact on the issue of the existence of a common-law marriage, the trial court erred
in granting Guillermo’s plea to the jurisdiction and dismissing the case. See Tex.

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Dep't of Parks & Wildlife, 133 S.W.3d at 227–28. Maria presented enough
evidence to have standing to bring her petition for divorce. Accordingly, we
sustain Maria’s first three issues. Having sustained these issues we do not reach
Maria’s final issue.

                             V.    CONCLUSION

      We reverse the order of the trial court granting appellee’s plea to the
jurisdiction and dismissing appellant’s petition for divorce, and remand for a
determination on the merits in accordance with this opinion. No issue was raised
on appeal regarding the final order in the SAPCR. Accordingly, that portion of the
judgement is affirmed.


                                     /s/       Tracy Christopher
                                               Justice



Panel consists of Justices Christopher, McCally, and Busby.




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