                             NUMBER 13-08-00546-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


MARGARET JOSEPHINE DEVLIN-WEINHEIMER,                                          Appellant,

                                             v.

EDMUND A. WEINHEIMER, JR.,                                                      Appellee.


                    On appeal from the 329th District Court
                          of Wharton County, Texas.


                          MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Chief Justice Valdez

       Appellant, Margaret Josephine Devlin-Weinheimer, appeals from the trial court’s

decree declaring her marriage to appellee, Edmund A. Weinheimer Jr., void. By four

issues, Margaret asserts that the evidence is insufficient to support the trial court’s order

and that the trial court erred by erroneously charging the jury and failing to grant her

judgment notwithstanding the verdict or her motion for new trial. We affirm.
                                     I. BACKGROUND

      On October 13, 2005, Edmund filed his original petition for divorce. Margaret timely

filed her original answer asserting the affirmative defense of reimbursement; several

discovery battles and withdrawals by counsel followed. On March 5, 2007, the Honorable

Daniel Richard Sklar, presiding judge of the 329th Judicial District Court of Wharton

County, Texas, entered a temporary order striking Margaret’s affirmative pleadings for

discovery abuse. Judge Sklar retired on April 30, 2007, but on May 1, 2007, he was

assigned to the present case. Margaret petitioned this Court for a writ of mandamus. See

In re Weinheimer, No. 13-07-287-CV, 2007 WL 2128919, at *1 (Tex. App.–Corpus Christi

July 26, 2007, orig. proceeding) (mem. op.). On June 13, 2007, we abated the case to

permit Judge Neil Caldwell, as successor judge, to reconsider Judge Sklar’s prior orders.

See id. On July 3, 2007, Judge Caldwell affirmed the order striking Margaret’s affirmative

pleadings.

      On May 5, 2008, Edmund filed his third amended petition requesting that the court

declare his marriage to Margaret void on the ground that Margaret had a prior and

unterminated common law marriage to Edward Richter. Edmund’s petition asserted that

Margaret and Richter entered into a common law marriage on or about April 14, 1983, and

that the marriage had not been “dissolved by divorce or annulment or . . . death.” On June

11, 2008, a jury trial was held to determine whether the marriage between Edmund and

Margaret was void or could otherwise be dissolved.

A.    Edmund’s Evidence

      1. Richter’s Testimony

      Richter testified, via videotaped deposition, that, after meeting through a business

                                            2
connection, he and Margaret began a relationship. By April 14, 1983, Margaret and

Richter lived together in San Antonio and held themselves out as husband and wife. They

filed joint tax returns in 1983 and 1984 and listed Margaret’s daughters, who were living

with them at the time, as dependents. Richter stated that he and Margaret had joint credit

cards and that Margaret told him that they were “common-law married.” While living

together, Richter and Margaret purchased a “family membership” at Fair Oaks Country

Club and a house. Richter testified that the documents involved in the purchase of the

house refer to he and Margaret as “Edward C. and wife, Margaret J. Richter.” On

September 28, 1984, Margaret and Richter deeded their San Antonio home to Millard

Smyth. Approximately one year later, on September 16, 1985, Margaret presented Richter

with a “separation agreement” when he “ran out of money, and she kicked [him] out.” The

agreement stated, “[t]his agreement is being prepared in contemplation of a divorce

proceeding.” Richter testified that the last time he saw Margaret was the day she

presented him with the separation agreement. In 1992, Richter filed a petition for divorce

and Margaret subsequently filed an answer; however, on August 4, 1994, the divorce

proceeding was dismissed for want of prosecution.

       During his testimony, Richter was presented with an affidavit signed by Margaret

sometime around April 2007. In the affidavit, Margaret states that she “was never

personally associated with Mr. Edward Richter,” but that Richter had “a relationship with

my mother, Margaret J. Finley.” Richter denied ever having a relationship with Margaret’s

mother, noting that he associated with Margaret’s mother “only when she would visit us at

Christmas.” The affidavit also stated that Richter was a “conman” who had “abandoned”

his children and engaged in “identity theft.” Margaret’s affidavit also alleged that Richter

“seduced” her minor daughter. Richter denied these allegations.

                                             3
        2. Edmund’s Testimony

        Edmund testified that he met Margaret in April 1996, began dating her in May 1996,

and that they started living together in late 1997. After they began living together, Edmund

met Margaret’s adult daughter Jacquelynne; until that time, Edmund was unaware that

Margaret had any children. After meeting Jacquelynne, Edmund questioned Margaret

about her previous relationships. Edmund testified that in 2000, Margaret told him that she

had been married to, and subsequently divorced, William Standley, Robert Devlin, Lewis

Milberger, and Edward Richter. In August 2002, Edmund signed a declaration of informal

marriage stating that he and Margaret married in October 1996. Edmund filed a petition

for divorce in September 2005. In 2006, Edmund discovered that a divorce petition had

been filed between Richter and Margaret, but Edmund was not able to locate a divorce

decree. Edmund testified that to his knowledge Richter’s marriage to Margaret was never

terminated.

B.      Margaret’s Evidence

        1. Lewis Millard Smyth, III’s Testimony

        Smyth testified that he met Margaret in New York City in the late 1960s. In the

1970s he and Margaret had a business and social relationship. Smyth stated that,

although he had been married to Barbara Smyth since 1959, he and Margaret began living

together in 1981 and lived together until around sometime in the mid-nineties.1 Smyth

testified that he and Barbara formally divorced in 1992. Margaret introduced Smyth and

Edmund in 1996 or 1997, and they became business partners. On cross-examination,

Smyth testified that he does not currently reside with Margaret, but that in the past twelve


        1
          On cross-exam ination, Sm yth testified that during the tim e of Margaret’s alleged com m on-law
m arriage to Richter, Sm ythe lived with Margaret during the week and with Barbara on the weekends.
                                                    4
months he has given her approximately one hundred fifty to one hundred sixty thousand

dollars.

       2. Margaret’s Testimony

       Margaret testified that she never intended to be married to Richter, never held

herself out as being married to Richter, and had not spoken to Richter since September

16, 1985.

C.     Jury Verdict

       After hearing the above testimony, the jury returned a verdict finding the marriage

between Edmund and Margaret void. The trial court accepted the jury’s verdict and

rendered a “Decree Declaring Marriage Void.” The trial court subsequently denied

Margaret’s motion for judgment notwithstanding the verdict as well as her motion for new

trial. This appeal ensued.

                             II. APPLICATION OF SECTION 1.91(b)

       Margaret and Edmund disagree over which section of the Texas Family Code is

applicable to the current case. Margaret asserts that the one-year statute of limitations

required under the 1989 amendment to former section 1.91(b) of the Texas Family Code

governs this case; Edmund contends that the two year rebuttable presumption found in

section 2.401(b) of the current Texas Family Code governs. See Act of May 29, 1989, 71st

Leg., R.S., ch 370, § 9, 1989 Tex. Gen. Laws 1458, 1461 (creating a one-year statute of

limitation following the end of the parties’ relationship to prove the existence of an informal

marriage), amended by Act of May 24, 1995, 74th Leg., R.S., ch. 891, § 1, 1995 Tex. Gen.

Laws 4404, 4404, repealed by Act of May 26, 1997, 75th Leg., R.S., ch. 7, § 3, 1997 Tex.




                                              5
Gen. Laws 8, 432; TEX . FAM . CODE ANN . § 2.401(b) (Vernon 2006) (creating a rebuttable

presumption that no agreement to marry exists if a proceeding to prove the existence of

an informal marriage is not commenced within two years after the couple ceases living

together).

A.      Development of Texas Law Regarding Informal Marriages

        When Margaret and Richter allegedly entered into an informal marriage,3 former

section 1.91(b) of the Texas Family Code provided that an informal marriage could be

“inferred if it [was] proved that [the couple] lived together as husband and wife and

represented to others that they were married.” Act of May 31, 1969, 61st Leg., R.S., ch.

888, § 1.91, 1969 Tex. Gen. Laws 2707, 2717, amended by Act of May 29, 1989, 71st

Leg., R.S., ch. 370, § 9, 1989 Tex. Gen. Laws 1458, 1461. This section remained in effect

when Margaret and Richter’s relationship allegedly ended in 1985. However, in 1989

former section 1.91(b) was amended to state as follows: “A proceeding in which a

marriage is to be proved under this section must be commenced not later than one year

after the date on which the relationship ended or not later than one year after September

1, 1989, whichever is later.” Act of May 29, 1989, 71st Leg., R.S., ch 370, § 9, 1989 Tex.

Gen. Laws 1458, 1461 (amended 1995, repealed 1997). This provision “created a one-


        2
           The constitutionality of form er section 1.91(b)’s one-year statute of lim itations has been questioned.
See W hite v. State Farm Mut. Auto Ins. Co., 907 F. Supp. 1012, 1017-19 (E.D. Tex. 1995) (concluding that
section 1.91(b) is unconstitutional as a violation of the equal protection clause); but see Dannelley v. Almond,
827 S.W .2d 582, 583-86 (Tex. App.–Houston [14th Dist.] 1992, no writ) (holding section 1.91(b) does not
violate either the open courts provision of the Texas Constitution or the Equal Protection Clause of the U.S.
and Texas Constitutions). In the present case, neither party addresses the constitutionality of the one-year
statutory lim itation period. Because our disposition does not require us to determ ine the constitutionality of
form er section 1.91(b), we do not address it. See T EX . R. A PP . P. 47.1; see In re B.L.D., 113 S.W .3d 340, 349
(Tex. 2003) (“As a rule, we only decide constitutional questions when we cannot resolve issues on
nonconstitutional grounds.”); Bradley v. State ex rel. W hite, 990 S.W .2d 245, 247 (Tex. 1999) (sam e).

        3
          “Inform al m arriage” is the statutory term used to describe what is colloquially known as a com m on-
law m arriage. See T EX . F AM . C OD E A N N . § 2.401 (Vernon 2006). These term s will be used interchangeably
throughout this opinion.
                                                        6
year statute of limitations on suits to prove the existence of an informal marriage.” Wilson

v. Estate of Williams, 99 S.W.3d 640, 644 (Tex. App.–Waco 2003, no pet.); see In re

Collins, 870 S.W.2d 682, 684 (Tex. App.–Amarillo 1994, writ denied) (concluding that

former section 1.91(b) is a statute of limitations rather than a jurisdictional requirement).

       In 1995, former section 1.91(b) of the family code was amended to abolish the

statute of limitations requirement. Act of May 24, 1995, 74th Leg., R.S., ch. 891, § 1, 1995

Tex. Gen. Laws 4404, 4404 (repealed 1997).                  This provision creates a rebuttable

presumption that the parties did not enter into an agreement to be married if a proceeding

to prove the informal marriage is not commenced before the second anniversary of the

date on which the parties separated and ceased living together. See TEX . FAM . CODE ANN .

§ 2.401(b).4 The 1995 amendment also provided:

       The change in law made by this Act to Section 1.91, Family Code, does not
       permit an action to be commenced on or after the effective date of this Act
       to prove the existence of an informal marriage for which an action was
       barred before the effective date of this Act for failure to bring the action
       before the first anniversary of the date the relationship ended.

Act of May 24, 1995, 74th Leg., R.S., ch. 891, § 2, 1995 Tex. Gen. Laws 4404, 4404

(repealed 1997). As noted, section former section 1.91 was repealed in 1997. Id. The

current version of the family code provides:

       If a proceeding in which a marriage is to be proved as provided by
       Subsection (a)(2) is not commenced before the second anniversary of the
       date on which the parties separated and ceased living together, it is
       rebuttably presumed that the parties did not enter into an agreement to be
       married.

        4
            The 1995 am endm ent provided:

       If a proceeding in which a m arriage is to be proved [as an inform al m arriage] is not
       com m enced before the second anniversary of the date on which the parties separated and
       ceased living together, it is rebuttably presum ed that the parties did not enter into an
       agreem ent to be m arried.

Act of May 24, 1995, 74th Leg., R.S., ch. 891, § 1, 1995 Tex. Gen. Laws 4404, 4404 (repealed 1997).
                                                   7
TEX . FAM . CODE ANN . § 2.401(b).

       Margaret argues that “under [former section] 1.91(b) no common law marriage exists

where the parties agreed to be married, cohabitated as man and wife, and hold [sic]

themselves out as man and wife if no efforts are made to prove the informal marriage

within one year after the relationship ceased to exist.” Edmund argues that former section

1.91(b) is a repealed provision of the family code and does not apply to this case.

       Our sister courts are split on whether former section 1.91(b)’s one-year statute of

limitation applies in proceedings commenced on or after September 1, 1995. See Wilson,

99 S.W.3d at 644 (concluding that the trial court properly applied the rebuttable

presumption of section 2.401(b) instead of former section 1.91(b)’s statute of limitations

where a proceeding in which an alleged informal marriage was to be proved commenced

in January 2001, even though the relationship upon which the informal marriage was

premised had ended in 1994); but see Lavely v. Heafner, 976 S.W.2d 896, 898-99 (Tex.

App.–Houston [14th Dist.] 1998, no pet.) (vacating trial court’s declaratory judgment that

an informal marriage never existed where a proceeding to establish the existence of the

informal marriage was not filed until March 1996, outside of former section 1.91(b)’s one-

year statute of limitations); see also Lopez v. Trevino, No. 04-03-00352-CV, 2004 WL

1054733, at **1-2 (Tex. App.–San Antonio May 12, 2004, no pet.) (mem. op.) (holding that

appellant was barred by former section 1.91(b)’s one-year statute of limitations from

proving that appellee was appellant’s mother’s common law husband).

       For reasons discussed below, we need not address the issue of whether former

section 1.91(b)’s one-year statute of limitation applies in proceedings commenced on or

after September 1, 1995.

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B.     Statute of Limitations

       Edmund argues that, even assuming former section 1.91(b) applies to the present

case, Margaret has waived her right to rely upon it. We agree. Margaret asserts that

Edmund’s waiver argument “misses the point” because he has the burden to prove that his

marriage to her is void. Margaret argues that by failing to offer proof that someone

commenced a proceeding before September 1, 1990 in which an informal marriage

between Margaret and Richter was to be proven, Edmund failed to meet his burden.

Although Margaret does not argue that Edmund should have brought the present action

within one year after the enactment of the 1989 amendment to former section 1.91(b), her

argument nonetheless uses a statute of limitations defense to thwart Edmund’s attempt

to prove his marriage void.

       Assuming without deciding that the application of former section 1.91(b) is

appropriate, we conclude that because Margaret failed to plead the affirmative defense of

limitations, she has waived any right to rely on former section 1.91(b). See In re Collins,

870 S.W.2d at 684-85 (concluding that former section 1.91(b)’s one-year statute of

limitations is an affirmative defense to a claim that an informal marriage existed).

Limitations is an affirmative defense that, in the absence of trial by consent, is waived if not

pleaded. Tuttlebee v. Tuttlebee, 702 S.W.2d 253, 256 (Tex. App.–Corpus Christi 1985,

no writ); see TEX . R. CIV. P. 94 (listing statute of limitations as an affirmative defense a

party “shall set forth affirmatively”). Margaret concedes that she did not plead statute of

limitations as an affirmative defense and that she was “prohibited from presenting any

affirmative defenses at trial” as a result of sanctions by the court.5 Because Margaret first

raised the issue of limitations at the hearing on her motion for new trial, she failed to timely

       5
           On appeal, Margaret does not contest the sanctions im posed by the trial court.
                                                      9
raise the defense. See Hollingsworth v. Hollingsworth, 274 S.W.3d 811, 815 (Tex.

App.–Dallas 2008, no pet.) (citing Wynn v. Wynn, 587 S.W.2d 790, 792 (Tex. Civ.

App.–Corpus Christi 1979, no writ)).

       Because we conclude that Margaret failed to plead the affirmative defense of

limitations, we need not address whether former section 1.91(b) or section 2.41(b) is

applicable. Because all of Margaret’s issues on appeal are premised on former section

1.91(b), we overrule each to the extent that it relies on former section 1.91(b). Margaret’s

third issue—that the trial court erred by failing to grant her motion for a judgment

notwithstanding the verdict—and her fourth issue—that the trial court erred by failing to

grant her motion for new trial—are based entirely on the applicability of former section

1.91(b); accordingly, we overrule Margaret’s third and fourth issues.

       In her second issue, Margaret argues that the trial court erred by entering a decree

declaring Edmund’s marriage to Margaret void because (1) the evidence is legally

insufficient to support the decree given that “there is no evidence to support a finding that

there was proof of a prior marriage within one year after the time the marital relationship

ceased to exist as required under Texas Family Code section 1.91(b)”; and (2) “[t]he

evidence was factually insufficient since there was no evidence offered to show the alleged

prior relationship between Margaret and Richter was ‘proven’ within one year after the date

it ceased to exist . . . .” Because this issue relies solely on the applicability of former

section 1.91(b), Margaret’s second issue is also overruled.

                                     III. JURY CHARGE

       In her first issue, Margaret contends that the court abused its discretion by failing

to submit her requested questions to the jury.


                                             10
A.     Standard of Review and Applicable Law

       We review a jury charge under an abuse of discretion standard. R & R Contractors

v. Torres, 88 S.W.3d 685, 696 (Tex. App.–Corpus Christi 2002, no pet.) (citing In re V.L.K.,

24 S.W.3d 338, 341 (Tex. 2000)). An abuse of discretion occurs when the trial judge acts

“without reference to any guiding principles.” DeLeon v. Pickens, 933 S.W.2d 286, 290

(Tex. App.–Corpus Christi 1996, writ denied) (citing Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241 (Tex.1985)). To preserve error regarding a court’s failure to submit

a proposed jury instruction, the proposed instruction must have been tendered to the trial

court in substantially correct wording. See TEX . R. CIV. P. 278; Placencio v. Allied Indus.

Int’l, 724 S.W.2d 20, 21 (Tex.1987). “[S]ubstantially correct . . . does not mean that it must

be absolutely correct, nor does it mean one that is merely sufficient to call the matter to the

attention of the court will suffice. It means one that in substance and in the main is

correct . . . .” Placencio, 724 S.W.2d at 21 (citing Modica v. Howard, 161 S.W.2d 1093,

1094 (Tex. Civ. App.–Beaumont 1942, no writ)).

B.     Analysis

       The jury was charged as follows: “Is the marriage between Edmund A. Weinheimer

and Margaret Devlin-Weinheimer void? Answer yes or no.” Section 6.202(a) of the family

code provides that “[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.” TEX . FAM . CODE ANN . § 6.202(a) (Vernon 2006). Margaret

argues that Edmund’s burden to prove his marriage to Margaret void “is bifurcated into at

least two (2) distinct categories under [former section] 1.91(b).” She describes the first

“category” as involving the issue of whether Margaret and Richter were informally married,


                                              11
and the second “category” as involving the issue of whether a marriage was proven within

one year after Margaret and Richter’s relationship ended. Because we have already held

that Margaret waived her right to a limitations defense, former section 1.91(b)’s statute of

limitations was not in issue; therefore, the trial court did not abuse its discretion by refusing

to submit questions related to Margaret’s proposed second category. See TEX . R. CIV. P.

278. Accordingly, we look only to the remaining questions proposed by Margaret as they

relate to the issue of informal marriage. Margaret proposed the following questions:

       Did Margaret D. Weinheimer and Edward C. Richter live together?

              ....

       Did Margaret D. Weinheimer and Edward C. Richter hold themselves out as
       husband and wife?

       The Texas Family Code requires three elements that must be proven in order to find

an informal marriage—agreement, holding out, and cohabitation. See TEX . FAM . CODE

ANN . § 2.401(a)(2). Margaret’s proposed questions are incomplete because they omit the

agreement requirement. See id.          By failing to include the agreement requirement,

Margaret left out an essential element of informal marriage and failed to tender the jury

instruction in substantially correct wording. See Tex. Commerce Bank Reagan v. Lebco

Constructors, Inc., 865 S.W.2d 68, 76 (Tex. App.–Corpus Christi 1993, writ denied)

(holding that tender of an instruction that misstates the law is not in substantially correct

form), overruled on other grounds by Johnson & Higgins of Tex., Inc. v. Kenneco Energy,

Inc., 962 S.W.2d 507, 530 (Tex. 1998); see also King v. Bank of N.Y., No. 13-07-069-CV,

2008 WL 2764523, at *6 (Tex. App.–Corpus Christi July 17, 2008, no pet.) (mem. op.)

(concluding that appellant’s proposed instruction was substantively incorrect where

appellant failed to include an essential element). Because Margaret failed to tender her

                                               12
issue in substantially correct wording, she failed to preserve error.          See Lebco

Constructors, Inc., 865 S.W.2d at 76; see also King, 2008 WL 2764523, at *6. Margaret’s

first issue is overruled.

                                     IV. CONCLUSION

       Having overruled all of Margaret’s issues, we affirm the trial court’s judgment.




                                                 ROGELIO VALDEZ
                                                 Chief Justice


Delivered and filed
the 3rd day of December, 2009.




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