                                  NUMBER 13-08-00122-CV

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


RANDY M. MCCASKILL,                                                                          Appellant,

                                                     v.

NORMAN RAY MCCASKILL,                                                                         Appellee.


                       On appeal from the 267th District Court
                             of Calhoun County, Texas.


              MEMORANDUM OPINION ON REHEARING 1

         Before Chief Justice Valdez and Justices Garza and Vela
        Memorandum Opinion on Rehearing by Chief Justice Valdez

        Appellant, Randy M. McCaskill, appeals the trial court’s denial of her: (1) petition

for a post-divorce division of her former husband’s retirement benefits;2 (2) petition for



         1
           Appellant, Randy M. McCaskill’s m otion for rehearing, m otion for en banc reconsideration, and
m otion for this opinion to be designated for publication are denied. However, we withdraw our m em orandum
opinion dated October 15, 2009 and substitute this m em orandum opinion in its place.

        2
          The retirem ent at issue consisted of a 401K, a pension plan, and a severance package; for clarity,
we refer to this property collectively as “retirem ent benefits.”
“divorce of a common-law marriage”; (3) bill of review; and (4) motion for continuance. We

affirm.

                                                I. BACKGROUND

A.        Procedural History

          Appellee, Norman Ray McCaskill (hereinafter referred to as Ray) and Randy were

married on December 24, 1991. On March 30, 2001, Ray filed a petition for divorce

accompanied by a waiver of citation bearing Randy’s signature. On April 17, 2001, Randy

filed an answer, contesting Ray’s petition for divorce as well as the waiver of citation.3 On

June 20, 2001, the district court set the final hearing for the pro se divorce to be heard on

July 3, 2001. Randy filed a motion for continuance on June 27, 2001. However, on July

3, 2001, in a motion entitled “Continuance,” Randy asked the court to “disregard the

Continuance and any papers filed by the Respondent,” because she “no longer object[ed]

to the divorce.” That same day, Randy appeared in court and the final divorce decree was

signed.

          Almost five years later, on April 11, 2006, Randy filed an original petition for post-

divorce division of property in the 267th District Court of Calhoun County. The petition

asserted that the July 3, 2001 divorce decree failed to divide, among other things, Ray’s

retirement benefits. On April 19, 2006, Ray filed a general denial, special exceptions, and

a motion to strike evidentiary facts from the pleadings, contending that Randy’s allegations

of undivided property were “without basis in fact.” On August 9, 2006, Randy filed an

“Original Petition for Divorce” in County Court at Law Number One of Calhoun County.

The petition asserted that Ray and Randy entered into a common-law marriage “on or

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              Randy’s answer stated the following:

                    The W aiver of Citation is not valid since it was signed Novem ber 24, 1999 which is
                    17 m onths before the Original Petition for Divorce and the W aiver of Citation.
                    Respondent does want to be notified of any proceedings and/or court dates for Cause
                    No. 2001-3-13952 and I will be present at for [sic] all proceedings.
                                                        2
about July 4, 2001” and “ceased to live together as husband and wife on or about February

10, 2006.” By this petition, Randy sought to obtain a divorce for the common-law marriage

she claimed existed from 2001 to 2006. Ray subsequently filed a general denial. These

cases were consolidated into the district court proceeding, and the court set the case for

a jury trial to be held on December 10, 2007. Although the case was later moved to the

non-jury docket, the case was heard on December 10, 2007.

B.     December 10, 2007 Proceeding

       On December 10, 2007, the case was called to trial with the court set to rule on the

following: (1) a motion for continuance; (2) a motion to sever; (3) a petition for bill of

review; (4) a petition for post-divorce partition of property; and (5) a petition for divorce,

alleging a common-law marriage. The court denied the motion for continuance and the

petition for bill of review and heard arguments from counsel concerning the post-divorce

partition of property. The trial court then heard testimony concerning whether Ray’s

retirement benefits had been divided in the 2001 divorce, and whether Ray and Randy

were common-law spouses from 2001 to 2006.

       1. Randy McCaskill

       Randy testified that immediately after their 2001 divorce, Ray “begged” her to

continue to live with him “as husband and wife, just like we are,” and not to tell anyone that

they had divorced. Randy agreed to stay and continued to live with Ray until January of

2006. Randy testified that she did not receive a copy of the 2001 divorce decree until

2006. During her testimony, several birthday and holiday cards purportedly given to her

by Ray after the divorce were entered into evidence. Randy told the court that she and

Ray first represented to others that they were married following the 2001 divorce by

sleeping in the same bed in her mother’s house during the Christmas holidays.

       A bankruptcy petition filed by Randy in 2005 stated that she was single and had
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divorced Ray in 2001. The following testimony concerning the petition was elicited during

Randy’s direct examination:

       Q. [Randy’s counsel]         You’ve signed this document. Did you not tell
                                    the United States Government that you were a
                                    single woman?

       A. [Randy]                   No, I did not.

       Q:                           Would you mind reading what’s on this form.

       A:                           I can see it, it says single. And I did not tell the
                                    United States Federal Government that I was a
                                    single woman. . . . But I didn’t fill the paperwork
                                    out, I had an attorney do it so I wouldn’t get in
                                    trouble.

Additionally, Randy testified that after the divorce, she filed her tax returns as single.

       2. Ray McCaskill

       Ray testified that, although he and Randy “sometimes” lived together after the 2001

divorce, he never intended to be, nor told anyone that they were, married. He testified that

Randy would stay with him for one to four weeks and then would leave to go live in the

back of her upholstery shop where she had a bed, refrigerator, and bathroom. Ray stated

that Randy would return to his home when she was in need of money. Ray further stated

that he “told lots of people” that he and Randy were divorced. When asked by Randy’s

counsel about his motive in giving birthday and holiday cards to Randy, Ray stated that

although he did not believe that he gave her cards after the divorce, if he had given her a

card, it was to “make things better.” Additionally, Ray noted that after the divorce he filed

his tax returns as single, and Randy was not covered under his health insurance.

       Ray testified that he retired in July 2001, around the same time he and Randy

divorced, because the company he worked for offered him a severance package and gave

him only thirty days to decide whether to take it. He stated that he had a 401K and a

pension plan at the time of the divorce.
                                              4
       After Ray’s testimony, the court heard conflicting testimony from the friends and

family of both parties. While some testified that Ray referred to Randy as his wife after the

2001 divorce, others testified that he did not. After hearing testimony, the trial court denied

all claims and suits. Randy’s motion for new trial was denied by written order on January

22, 2008. No findings of fact or conclusions of law were timely requested. This appeal

ensued.

                           II. POST -DIVORCE DIVISION OF PROPERTY

       In her first two issues, Randy contends that: (1) the trial court abused its discretion

in failing to grant her post-divorce division of property; and (2) the evidence is legally

insufficient to support the trial court’s findings.

A.     Standard of Review

       A trial court has broad discretion in dividing property. Schlueter v. Schlueter, 975

S.W.2d 584, 589 (Tex. 1998). In this case, the trial court below did not divide property;

instead, it found that the 2001 divorce disposed of all property. Because the finding made

by the trial court is intimately linked to the division of property we apply the abuse of

discretion standard. A trial court abuses its discretion by acting arbitrarily, unreasonably,

or without consideration of guiding principles. Walker v. Gutierrez, 111 S.W.3d 56, 62

(Tex. 2003). “Under an abuse of discretion standard, legal and factual sufficiency are not

independent grounds of error, but are relevant factors in assessing whether the trial court

abused its discretion.” Zorilla v. Wahid, 83 S.W.3d 247, 252 (Tex. App.–Corpus Christi

2002, no pet.).

       In a non-jury trial, when no findings of fact or conclusions of law are requested or

filed, as is the case here, we imply all necessary findings in support of the trial court’s

judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); City of

Brownsville v. Teran, 907 S.W.2d 593, 595 (Tex. App.–Corpus Christi 1995, no writ).
                                                5
When a reporter’s record is included in the record, the implied findings may be challenged

for legal and factual sufficiency the same as jury findings or a trial court’s findings of fact.

See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).

         When a party attacks the legal sufficiency of an adverse finding on an issue upon

which it had the burden of proof, the party must demonstrate on appeal that the evidence

establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 241 (Tex. 2001). In a legal sufficiency review, we review the

evidence in the light most favorable to the verdict, crediting evidence that supports the

verdict if reasonable jurors could and disregarding all contrary evidence that a reasonable

jury could have disbelieved. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.

2005).

B.       Applicable Law

         A trial court may order the post-divorce division of community property which was

not divided in a final divorce decree. See TEX . FAM . CODE ANN . § 9.201 (Vernon 2006).

However, where one party seeks to claim a share of an asset that was already divided in

the divorce decree, the claim is barred. Brown v. Brown, 236 S.W.3d 343, 349 (Tex.

App.–Houston [1st Dist.] 2007, no pet.).

         A judgment finalizing a divorce and partitioning the property represents res judicata

as to any attempt to relitigate the division of property at a later time. Reiss v. Reiss, 118

S.W.3d 439, 443 (Tex. 2003); Day v. Day, 603 S.W.2d 213, 215 (Tex. 1980). “Res

judicata bars relitigation of claims which have been finally adjudicated or arise out of the

same subject matter and could have been litigated in the prior action.” Brown, 236 S.W.3d

at 348 (citing Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 358 (Tex. 1998)

(per curiam)). “Res judicata applies to a final divorce decree; barring subsequent collateral

attack even if the divorce decree improperly divided the property.” Id. at 347 (citing Baxter
                                               6
v. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990); Cook v. Cameron, 733 S.W.2d 137, 140

(Tex. 1987)).

C.    Analysis

      Randy argues that the doctrine of res judicata does not bar division of Ray’s

retirement benefits because his retirement benefits “were never before the Court [in the

2001 divorce] for division.”   While not conceding that his retirement benefits were

community property, Ray argues that his retirement benefits were before the court in the

2001 divorce and, assuming the benefits were community property, the divorce decree

erroneously characterized the retirement benefits as separate property in its division of

property.

      In the absence of findings, we must affirm the judgment on any theory of law

supported by the evidence. Woford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re

W.E.R., 669 S.W.2d 716, 717 (Tex. 1984); Teran, 907 S.W.2d at 595. Randy, as the

appellant of the post-divorce partition proceeding, bears the burden of establishing that

Ray’s retirement benefits were not divided in the 2001 divorce. See Brown, 236 S.W.3d

at 349 (holding that post-divorce division of wife’s retirement benefits was barred by res

judicata where husband failed to support his contention that retirement benefits had not

been addressed or divided in the divorce proceeding). Randy points to the language of the

divorce decree in support of her contention.

      The divorce decree provides that “THE COURT FINDS THAT the parties do not own

any community property of any significant value other than their personal effects.”

Although this language unambiguously conveys that the parties did not own community

property at the time of the divorce, the language of the divorce decree does not establish

whether Ray’s retirement benefits were characterized as separate property.

      During the bench trial, Ray testified that at the time of the divorce, Randy was aware
                                            7
of his retirement benefits. He also testified that: (1) he and Randy had already “worked

out” everything and divided all of their property between themselves; and (2) Randy drafted

the divorce papers. Ray also introduced a notarized memo written and signed by Randy

in 1997, in which she promised to pay back money she borrowed from Ray. In addition to

promising to pay him back, she stated, “I do not consider any of his belongings as

community property,” and “I agree to take only what I have brought into the marriage and

only what I have accumulated during the marriage.” Randy testified that she knew about

Ray’s retirement benefits at the time of their divorce, and that “he told [her] about all of the

stuff that he had.” Randy further testified that she was in court the day that the divorce

decree was signed.

       At the conclusion of the post-divorce partition proceeding, the trial court stated, “I

think there’s nothing to divide is the same thing as a division, as a disbursement. I’m pretty

sure that that [sic] finding establishes the fact that there is no community. It’s not like being

silent as to how the community should be divided, it’s a finding that there is no community

to divide.”

       Based on this evidence, the trial court could have found that the trial court in the

2001 divorce erroneously characterized Ray’s retirement benefits as his separate property

at the time of the divorce. See Woford, 801 S.W.2d at 109 (Tex. 1990) (noting that where

no findings of fact or conclusions of law are requested an appellate court implies that the

trial court made all the findings necessary to support its judgment). Because the trial court

below could have found that the 2001 divorce proceeding divided Ray’s retirement

benefits, any attempt to relitigate the division of Ray’s retirement benefits is barred by res

judicata. See Reiss, 118 S.W.3d at 443. Accordingly, the trial court did not abuse its

discretion by denying Randy’s petition for post-divorce partition of property. Randy’s first

and second issues are overruled.
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                         III. PETITION FOR COMMON -LAW MARRIAGE

        In her third and fourth issues, Randy challenges the factual sufficiency of the

evidence supporting the finding that a common-law marriage did not exist.

A.     Standard of Review

       When a party attacks the factual sufficiency of an adverse finding on an issue on

which it has the burden of proof, the party must demonstrate on appeal that the adverse

finding is against the great weight and preponderance of the evidence. Francis, 46 S.W.3d

at 241. In reviewing factual sufficiency, we consider and weigh all of the evidence and set

aside the finding only if it is so against the great weight and preponderance of the evidence

that it is clearly wrong and unjust. Id.

B.     Applicable Law

       To find that a common law marriage exists in Texas, the following elements must

be established: (1) an agreement to be married; (2) living together in Texas as husband

and wife subsequent to the agreement to be married; and (3) representing to others in

Texas that they were married. See TEX . FAM . CODE ANN . § 2.401(a)(2) (Vernon 2006). A

common-law marriage does not exist until the concurrence of all three elements. Winfield

v. Renfro, 821 S.W.2d 640, 645 (Tex. App.–Houston [1st Dist.] 1991, writ denied). An

agreement to be married requires that “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

agreement to be married may be established by direct or circumstantial evidence. Russell

v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). Cohabitation need not be continuous, see

Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App.–San Antonio 1987, no writ), and is

determined on a case-by-case basis. Russell, 865 S.W.2d at 933.

       The statutory requirement of “represent[ing] to others,” or “holding out,” may be
                                          9
established by the conduct and actions of the parties. Eris, 39 S.W.3d at 715. Spoken

words are not necessary to establish representation as husband and wife. Winfield, 821

S.W.2d at 645. Written references to the marriage or to a party as “spouse” are evidence

of “holding out.” See Persons v. Persons, 666 S.W.2d 560, 563 (Tex. App.–Houston [1st

Dist.] 1984, writ ref’d n.r.e.) (holding that a reference to one party as “spouse” in credit

application was evidence of holding out).

C.     Analysis

       At the conclusion of the bench trial, the court stated:

       I’m in a situation where I don’t have the [agreement] prong that you want me
       to have to say that there’s a common law marriage. I’ve got the other two,
       you proved the other two, no question in my mind. But you haven’t proved
       that agreement, a meeting of the minds.

We, therefore, focus our analysis on whether the court erred in finding that Ray and Randy

did not agree to enter into a common-law marriage in 2001.

       Ray testified that although Randy lived with him after their 2001 divorce, they did not

enter into an agreement to be married. He testified that after their 2001 divorce he: (1)

filed as single on his income tax returns; (2) did not introduce or refer to Randy as his wife;

and (3) did not cover Randy under his health insurance. The court also heard testimony

from Ray’s friends and family members that after the 2001 divorce Ray did not refer to

Randy as his wife or do anything to indicate that he and Randy were still married. Randy

testified that a bankruptcy petition that she filed in 2005, indicated that Ray was her “former

husband” and that she was a single woman. She also testified that she filed her tax

returns as single.

       Evidence contrary to the court’s finding includes Randy’s testimony that after the

2001 divorce, they agreed to continue living together as husband and wife. Witnesses for

Randy testified that after the 2001 divorce, Ray referred to Randy as his wife. Randy also

                                              10
introduced several holiday and birthday cards purportedly given to her by Ray into

evidence.

          After considering and weighing all of the evidence, we cannot conclude that the

evidence is so weak or that the court’s finding that no common-law marriage existed is so

against the great weight and preponderance of the evidence that it is clearly wrong and

unjust.     See Francis, 46 S.W.3d at 241; see also Maldonado v. Maldonado, No.

04-02-00818-CV, 2003 WL 21653876, at *7 (Tex. App.–San Antonio July 16, 2003, no

pet.) (mem. op.) (concluding that although evidence suggested that the parties “had a close

relationship” the evidence did not necessarily support a marital relationship). We conclude

that the evidence is factually sufficient to support the trial court’s denial of Randy’s petition

for common-law marriage. Randy’s third and fourth issues are overruled.

                                        IV. BILL OF REVIEW

          In her fifth issue, Randy contends that the trial court abused its discretion by denying

her bill of review proceeding as to the 2001 divorce without hearing any evidence, thereby,

preventing her from amending her petition or bill of review to correct any pleading defects.

A.        Standard of Review and Applicable Law

          “A bill of review is an equitable proceeding to set aside a judgment that is not void

on the face of the record but is no longer appealable or subject to a motion for new trial.”

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “A bill of review is proper

where a party has exercised due diligence to prosecute all adequate legal remedies

against a former judgment, and at the time the bill of review is filed, there remains no such

adequate legal remedy still available because, through no fault of the bill’s proponent,

fraud, accident, or mistake precludes presentation of a meritorious claim or defense.” Id.

A petitioner seeking to set aside a prior judgment by bill of review must plead and prove

(1) a meritorious defense to the cause of action alleged to support the judgment; (2) that
                                                11
the petitioner was prevented from making by the fraud, accident or wrongful act of his or

her opponent; and (3) the petitioner was not negligent. Id. at 752 (citing Alexander v.

Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950)).

       Absent a showing of extrinsic fraud, a bill of review must be filed within four years

of the date of the judgment which the proponent seeks to set aside. See TEX . CIV. PRAC .

& REM . CODE ANN . § 16.051 (Vernon 2008); Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.

1998). “Extrinsic fraud” is fraud that denies a party the opportunity to fully litigate all the

rights and defenses that the party was entitled to assert at trial. King Ranch, 118 S.W.3d

at 752; Law v. Law, 792 S.W.2d 150, 153 (Tex. App.–Houston 1990, writ denied). To bring

a bill outside the limitations period, it is the petitioner’s burden to show the presence of

extrinsic fraud. See Manley v. Parsons, 112 S.W.3d 335, 338 (Tex. App.–Corpus Christi

2003, pet. denied). “We review the granting or denial of a bill of review under an abuse of

discretion standard.” Id. at 337.

B.     Analysis

       Randy contends that the trial court did not hear evidence or give her a chance to

correct defects in her bill of review; however, the record does not support her contention.

Randy filed her bill of review on November 30, 2007. A notice of setting for the bill of

review was filed on December 4, 2007. On December 10, 2007, the trial court heard

argument from counsel in order to determine whether extrinsic fraud existed to overcome

the statute of limitations.

       On appeal, Randy argues that extrinsic fraud exists because service of process for

the 2001 divorce was improper. Ray filed the divorce petition on March 30, 2001. Randy

filed an answer on April 17, 2001, and a motion for continuance on June 27, 2001. Randy

did not complain of defective or improper service in either her answer or motion for

continuance. Additionally, on the day of the final divorce hearing, Randy filed a motion to
                                              12
disregard the motion for continuance and was in the courtroom when the court signed the

divorce decree. The filing of an answer or some other appearance generally waives any

defect in the service of citation. See Alcala v. Williams, 908 S.W.2d 54, 56 (Tex. App.–San

Antonio 1995, no writ); Schulz v. Schulz, 726 S.W.2d 256, 258 (Tex. App.–Austin 1987,

no writ). Additionally, without proof of extrinsic fraud, Randy’s bill of review was barred by

the four year statute of limitations. See Temple v. Archambo, 161 S.W.3d 217, 227 (Tex.

App.–Corpus Christi 2005, no pet.). Accordingly, we cannot conclude that the trial court

acted without reference to guiding rules and principles or that its actions were arbitrary and

unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985). Randy’s fifth issue is overruled.

                                  V. MOTION FOR CONTINUANCE

       In her sixth issue, Randy challenges the trial court’s denial of her motion for

continuance. Upon review of the record, we find two separate motions for continuance.

One motion seeks a continuance to allow newly obtained counsel adequate time to prepare

for a hearing set for November 19, 2007.4 The second motion seeks a continuance to

allow counsel adequate time to prepare for a December 10, 2007 hearing. The clerk’s

record contains a single order denying Randy’s continuance without reference to which

motion it is denying. Although Randy asserts that “the trial court abused its discretion in

not granting a continuance in this matter,” she does not provide citations to the particular

motion that was denied. See TEX . R. APP. P. 38.1(i). In the absence of appropriate

citations, Randy has failed to adequately develop her arguments regarding this issue. See

id. Because it is inadequately briefed, this issue is waived. Accordingly, we overrule

Randy’s sixth issue.


       4
          A m otion to withdraw by Randy’s original counsel does not appear in the record. However, new
counsel filed an appearance on Novem ber 14, 2007.
                                                  13
                                    V. CONCLUSION

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


                                                      _______________________
                                                      ROGELIO VALDEZ,
                                                      Chief Justice


Delivered and filed
the 10th day of December, 2009.




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