                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 THORSTEN RANSAVILLE FARRELL,                                   No. 08-13-00021-CV
                                                §
                        Appellant,                                   Appeal from
                                                §
 v.                                                              383rd District Court
                                                §
 ANA FARRELL,                                                 of El Paso County, Texas
                                                §
                        Appellee.                              (TC # 2011DCM10297)
                                                §

                                          OPINION

       Thorsten Farrell appeals a decree of divorce challenging the trial court’s determination of

the date a common law marriage occurred and complaining of the divestiture of separate

property federal retirement benefits as a result. For the reasons that follow, we must affirm.

                                     FACTUAL SUMMARY

       The parties were originally married on September 6, 1994 and divorced in Deming, New

Mexico in May 2003. In the decree, Thorsten was awarded their home at 1615 Bryant Street,

where he continued to live. After the divorce, Ana and the children moved to El Paso. She

testified that Thorsten visited with them in El Paso frequently and he would spend the weekends

in her apartment. Significantly, she testified that, “we decided in January of 2004 to get back

together.”   In January 2004, Thorsten attended a Border Patrol training program in North

Carolina for approximately four months. According to Ana, they began using a joint bank
account and in May 2004, when her lease expired, she moved from El Paso to Deming. When

Thorsten returned from North Carolina in May, they began living together in the Bryant Street

home. Thorsten recalled that they began living together in August 2004. They discussed

becoming remarried, “but we just didn’t do it.” The Bryant Street home was sold and the Sadler

Street residence purchased in May 2005. That house was put on the market for sale in 2008.1 It

had not sold as of the date of trial, nor was it consistently rented.

         The parties separated in the summer of 2011 and Ana filed for divorce in December

2011, alleging that the parties were married on September 6, 2004.2 Thorsten’s counter petition

alleged that the parties were married on or about December 2004. The live pleadings at trial

contained these same assertions. At the beginning of trial, Ana’s attorney asked the court to find

that a marriage occurred in January of 2004. Thorsten’s attorney asked the court to find that a

marriage occurred in January 2005.

         Thorsten is employed by the United States Border Patrol. The parties stipulated on the

record that any benefits he received through his Federal Employee Retirement Savings (FERS)

or Thrift Savings Plan would be divided equally from the date of the common law marriage

through the date of the parties’ second divorce. And while they agreed that they had entered into

a common law marriage, they disagreed as to the date it was effective.                                During trial,

documentation was introduced establishing that the couple’s daughter was re-enrolled in the

Deming school district on August 15, 2004. The trial court determined that the parties had




1
   It is not apparent from the record when the parties moved out of the Sadler house. Ana, who experienced some
difficulty testifying in English, said, “I’m not sure when we bought that house. Since we bought that house until
2000 -- December 2009.” If that is true, we cannot ascertain where the couple lived between that date and when
they separated in the summer of 2011.
2
   We find nothing in the record to substantiate this allegation nor was there any testimony about it. We do note that
it represents what would have been the couple’s tenth wedding anniversary had they not divorced.

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established a common law marriage as of August 15, 2004 and divided Thorsten’s federal

retirement benefits equally between the parties from that date until the divorce was granted.

       Thorsten’s trial counsel filed a motion for new trial complaining of issues related to child

support and alleging that the court divided his retirement benefits based upon an inaccurate date

of marriage, but did not advise the court of the specific issue now urged on appeal. Thereafter

Thorsten filed two motions pro se on January 24, 2013 related to findings of fact. He then

employed appellate counsel effective February 6, 2013. The hearing on the motion for new trial

was held March 12, 2013. His appellate counsel argued that in Texas, a common law marriage

does not exist until all of the requirements have been met. At that point, she did not yet have a

record of the testimony. In the appellate brief, counsel alleges that while the couple may have

been living together in 2004, they were not living together in Texas. Consequently, the argument

continues, there was no evidence from which the trial court could have reasonably found the

existence of an informal marriage under Texas law.

                          COMMON LAW MARRIAGE IN TEXAS

       Texas recognizes common law marriages which pursuant to the Texas Family Code are

statutorily known as marriages without formalities:

       § 2.401. Proof of Informal Marriage

       (a) In a judicial, administrative, or other proceeding, the marriage of a man and a
           woman may be proved by evidence that:

               (1) a declaration of their marriage has been signed as provided by this
                   subchapter; or

               (2) the man and woman 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.




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[Emphasis added]. TEX.FAM.CODE ANN. § 2.401 (West 2006). Only the second requirement

is in dispute. Does the evidence support the finding that the parties lived together in Texas?

       The existence of an informal marriage is a fact question, and the party seeking to

establish existence of the marriage bears the burden of proving the three elements by a

preponderance of the evidence.      Small v. McMaster, 352 S.W.3d 280, 282-83 (Tex.App.--

Houston [14th Dist.] 2011, pet. denied). The proponent may prove an agreement to be married

by circumstantial as well as direct evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex.

1993); Lewis v. Anderson, 173 S.W.3d 556, 559 (Tex.App.--Dallas 2005, pet. denied).

       An informal marriage does not exist unless all three elements are present. Small, 352

S.W.3d at 283; Eris v. Phares, 39 S.W.3d 708, 713 (Tex.App.--Houston [1st Dist.] 2001, pet.

denied). And all three elements must exist at the same time. Palacios v. Robbins, No. 04-02-

00338-CV, 2003 WL 21502371 *3 (Tex.App.--San Antonio July 2, 2003, pet. denied)(not

design. for pub.). The elements of an informal marriage are determined on a case-by-case basis.

See Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981). Thorsten admitted, the

school records verified, and the trial court determined that the parties’ established a common law

marriage in August 2004.

       The first problem, of course, is that there was no Texas common law marriage because in

August 2004, all of the parties were residing in New Mexico, not Texas. And while Ana claimed

that at various points right after the first divorce, Thorsten was spending entire weekends with

her in El Paso, it is clear from her testimony that the parties did not agree to be married until

January 2004. The Family Code requires cohabitation in the state of Texas after the parties

agree to be married. TEX.FAM.CODE ANN. § 2.401. The second problem is that New Mexico

does not recognize common law marriage in its statutory scheme. Oliver v. Oliver, 889 S.W.2d



                                               -4-
271, 272 (Tex. 1994); Dion v. Rieser, 285 P.3d 678, 682 (N.M.App, 2012), cert. denied, 294

P.3d 1243 (N.M. Jun. 14, 2012); Merrill v. Davis, 100 N.M. 552, 673 P.2d 1285, 1286 (N.M.

1983, no cert.). Thus, there could be no New Mexico common law marriage. In any event,

neither party introduced evidence of New Mexico law, nor asked the court to take judicial notice

of New Mexican law. We must thus address the appropriate standard of review and matters

relating to preservation of error.

                                     STANDARDS OF REVIEW

       Thorsten challenges both the legal and factual sufficiency of the evidence to support a

finding that a common law marriage was established in August 2004. A "no evidence" or legal

insufficiency point is a question of law which challenges the legal sufficiency of the evidence to

support a particular fact finding. The reviewing court must credit evidence that supports the

finding if a reasonable fact finder could, and disregard contrary evidence unless a reasonable fact

finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). "No evidence"

points must, and may only, be sustained when the record discloses one of the following

situations: (a) a complete 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; (d) the evidence

establishes conclusively the opposite of the vital fact. Id.

       "Insufficient evidence" or factual insufficiency involves a finding that is so against the

great weight and preponderance of the evidence as to be manifestly wrong. The test for factual

insufficiency points is set forth in ln re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In

reviewing a point of error asserting that a finding is against the great weight and preponderance

of the evidence, we must consider all of the evidence, both the evidence which tends to prove the



                                                -5-
existence of a vital fact as well as evidence which tends to disprove its existence. If the verdict is

so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the

point should be sustained. This is true even if the finding is supported by more than a scintilla of

evidence and even though reasonable minds might differ as to the conclusions to be drawn from

the evidence.

       Findings of fact in a bench trial have the same force and dignity as a jury's verdict upon

questions and are reviewed for legal and factual sufficiency of the evidence by the same

standards. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Tierra Sol Joint Venture v. City of

El Paso, 311 S.W.3d 492, 498 (Tex.App.-El Paso 2009, no pet.). However, this appeal proceeds

without benefit of findings of fact. Thorsten -- while representing himself pro se -- filed an

untimely request and he did not comply with the rule which requires the filing of a reminder

request. TEX.R.C IV.P. 296, 297. Nevertheless, it is clear from the record that the trial court

found the marriage began on August 15, 2004, the date the couple’s daughter was enrolled in

school in Deming.

                                 PRESERVATION OF ERROR

       As we have mentioned, both parties believed that a common law marriage had been

created at some point between January 2004 and January 2005. Their pleadings, testimony, and

agreements on the record clearly establish this, despite the fact that the premise was erroneous.

It is also clear that the trial court’s finding that a common law marriage began on August 15,

2004 is erroneous as well. The question remaining is, was error preserved? We disagree with

Ana’s position that a motion for new trial was required to assert the argument. A point in a

motion for new trial is only a prerequisite to a complaint on appeal in the five circumstances

enumerated in Rule 324(b). TEX.R.C IV.P. 324(b). Any finding of fact in a bench trial may be



                                                -6-
challenged for the first time on appeal as to the legal and factual sufficiency of the evidence to

support it. TEX.R.APP.P. 33.1(d). But at some point in the trial court below, Thorsten was

required to at least raise the argument. This is especially true inasmuch as the Supreme Court

has narrowly construed the concept of fundamental error, holding that it exists in those rare

instances in which the trial court lacked jurisdiction or the public interest is directly and

adversely affected. Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993).

Simply stated, complaints on appeal must have been presented to the trial court.

       As a prerequisite to present a complaint for appellate review, the record must show that

the complaint was made to the trial court by a timely request, objection, or motion that stated the

grounds for the ruling sought with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context. [Emphasis added].

TEX.R.APP.P. 33.1(a)(1)(A). The reason, of course, is to give the trial judge the opportunity to

correct the error. Here follows the sole argument from Thorsten’s counsel at the hearing on the

motion for new trial:

       The other issue is with regard to property division. We believe that the Court
       divested Mr. Farrell of his separate property. There’s case law stating that
       common-law marriage, under Texas law, does not exist until all of the
       requirements have been met. So if you meet some of them, but not all of then, the
       common-law marriage hasn’t started yet. The Court divided his retirement based
       on a date that we believe is -- is inaccurate. I don’t have the record of the
       testimony, obviously, but those are the arguments that we’re making.

       We’re asking the Court to grant a new trial on that basis, so we can -- I don’t
       know that the issue -- I don’t know how thoroughly the issue of the date of
       marriage, and the -- the law on that topic was really presented to the Court. My
       client’s recollection is that it was not litigated real heavily, but that -- the -- the
       evidence was not presented that was sufficient to establish the earlier date of the
       marriage.

This argument relates to the court’s finding that the parties created a common law marriage on

August 15, 2004. That is the only context in which the parties presented their disputed regarding

                                                -7-
a common law marriage. But that statement is insufficient to put the trial court on notice that

Thorsten’s complaint was that no marriage existed because the couple did not cohabit in Texas.

Nor could the trial judge have intuited such an argument, since the pleadings, the testimony, and

the arguments of counsel all related to the date of cohabitation and not the locale.

       We overrule Issue One. Consequently, we do not reach Issue Two regarding divestiture

of separate property. The judgment of the trial court is affirmed.


January 28, 2015
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Rivera, J., not participating)




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