
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN






NO. 03-01-00212-CV



Gretchen Ann Hazard Reynolds, Appellant

v.


Charles Wilson Reynolds, Appellee






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. GN-000857, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING 







	The district court granted appellee Charles Wilson Reynolds ("Charles") summary
judgment declaring that he and appellant Gretchen Ann Hazard Reynolds ("Gretchen") are not
common law, or informally, married pursuant to Texas law.  See Uniform Declaratory Judgments
Act, Tex. Civ. Prac. & Rem. Code Ann. § 37.001-.011 (West 1997 & Supp. 2002).  By two issues,
Gretchen contends that the district court erred because genuine issues of material fact exist regarding
(1) when the statute of limitations began to run on her claim to establish an informal marriage, and
(2) her affirmative defense of equitable estoppel.  Because we hold that the district court lacked
jurisdiction to grant Charles the relief he sought, we reverse the district-court judgment and dismiss
the cause.  

BACKGROUND	Although the parties disagree as to the circumstances of their relationship, they do
agree that, before March 11, 1979, they had been living together in Texas.  Gretchen alleges that on
that date, in Austin, she and Charles "announced to friends and family members who were present
that we were married and were going to live the rest of our lives as husband and wife." (1)  In May they
left Texas and in January 1980, settled in Virginia, where both currently reside.  Two children were
born to Charles and Gretchen.  According to Charles, the parties ceased cohabiting in June 1992,
when Gretchen moved out of their home and never returned; Gretchen asserts that they stopped
living together and were last intimate in October 1992.  Charles asserts that in December 1992,
Gretchen began cohabiting with another man, an assertion Gretchen denies.  In May 1997, Charles
told Gretchen that their separate living arrangements were permanent and that they "should" each
marry others.  On June 20, 1999, Charles married another.  The next day, Gretchen threatened to sue
Charles for divorce.  She made a "final settlement offer" in January 2000, and on March 23, Charles
filed this declaratory-judgment action in the Texas district court, alleging that "any assertion or claim
that the parties were informally married in Texas prior to their departure from the state in 1979, is
barred by the applicable statute of limitations"; and he asked the court to "render a declaratory
judgment establishing, as a matter of law, that [the parties] are not married." (2)  Gretchen responded
on April 5 by suing Charles for divorce in Virginia.  Her "Bill of Complaint" alleges that she and
Charles "were married on the 10th day of March, 1979, in Austin, Texas . . . [and f]rom the wedding
ceremony on March 10, 1979 until the parties separated in June of 1997, they cohabited together as
husband and wife and represented to the world that they were husband and wife."  However,
Gretchen's affidavit in opposition to Charles's motion for summary judgment avers that they
"separated" in 1992.
	On March 26, 2001, following a hearing, the Texas district court granted summary
judgment for Charles in this cause, declaring that Charles and Gretchen "are not husband and wife
under the laws of the state of Texas."
DISCUSSION
Jurisdiction 
	Neither party has raised the question of whether the district court possessed
jurisdiction over Charles's suit for declaratory judgment.  We may consider the district court's
jurisdiction sua sponte.  Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (citing
Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993), for proposition
that "subject matter jurisdiction cannot be waived and may be raised for the first time on appeal by
the parties or by the court"); see also W. Wendell Hall, Standards of Review in Texas, 29 St. Mary's
L.J. 351, 373 n.85 (1998) (citing Mayhew as "indicating that lack of subject matter jurisdiction can
be raised sua sponte by the appellate court").  Whether a trial court has subject-matter jurisdiction
is a question of law subject to de novo review.  Mayhew, 964 S.W.2d at 928; Paulsen v. Texas Equal
Access to Justice Found., 23 S.W.3d 42, 44 (Tex. App.--Austin 1999, pet. denied) ("The
determination of jurisdiction over a declaratory judgment action is a question of law and so is subject
to de novo review).  
	The purpose of a declaratory judgment is "to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be
liberally construed and administered."  Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (West 1997). 
However, the Uniform Declaratory Judgments Act does not confer jurisdiction on a trial court, but
rather makes declaratory judgment available as a remedy for a cause of action already within the
court's jurisdiction.  Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996) (holding that mere
request for declaratory judgment does not establish jurisdiction); State v. Morales, 869 S.W.2d 941,
947 (Tex. 1994) ("A litigant's request for declaratory relief cannot confer jurisdiction on the court,
nor can it change the basic character of a suit."); Texas Ass'n of Bus., 852 S.W.2d at 444 ("[W]e
have interpreted the Uniform Declaratory Judgments Act . . . to be merely a procedural device for
deciding cases already within a court's jurisdiction rather than a legislative enlargement of a court's
power, permitting the rendition of advisory opinions."); accord Frasier v. Yanes, 9 S.W.3d 422, 427
(Tex. App.--Austin 1999, no pet.) (holding that claimant seeking declaratory judgment must already
have separate, valid cause of action).  "[T]he marital status of parties is a proper subject for
declaratory relief, but only where an actual, justiciable controversy exists."  Georgiades v. Di
Ferrante, 871 S.W.2d 878, 881 (Tex. App.--Houston [14th Dist.] 1994, writ denied).  This Court
must determine whether Charles's request for declaratory relief is germane to a justiciable
controversy already within the district court's jurisdiction.

Justiciable Controversy in Texas
	A justiciable controversy need not be "a fully ripened cause of action."  Texas Dep't
of Public Safety v. Moore, 985 S.W.2d 149, 153 (Tex. App.--Austin 1998, no pet.) (citing Ainsworth
v. Oil City Brass Works, 271 S.W.2d 754, 760 (Tex. Civ. App.--Beaumont 1954, no writ)). 
However, the fact situation must manifest the "'ripening seeds of a controversy' . . . even though the
differences between the parties as to their legal rights have not reached the state of an actual
controversy."  Ainsworth, 271 S.W.2d at 761 (cited in Moore, 985 S.W.2d at 154).  In other words,
there must either be a pending cause of action between the parties or such a clear indication of the
extent of the parties' differences that a court may presume one is imminent.
	Here, there is neither a pending action in Texas nor seeds that could ripen into a Texas
controversy, because, under the facts presented by the Reynoldses, any controversy between them
exists in Virginia.  Charles seeks to establish that he and Gretchen did not have an informal marriage
under the laws of Texas, a matter that he may assert in Virginia, but may not assert in Texas, because
a Texas court could not divorce the Reynoldses and their dispute arose in Virginia.
	We begin by observing that neither party has requested a divorce from a Texas court. 
In fact, at the time Charles filed this action, there was no suit for divorce pending between the parties
in any jurisdiction. (3)  Texas law contains a residency requirement that a party must satisfy before a
court may grant a divorce:  

A suit for divorce may not be maintained in this state unless at the time suit is filed
either the petitioner or the respondent has been:


a domiciliary of this state for the preceding six-month period; and 
 a resident of the county in which the suit is filed for the preceding 90-day period. 


	Tex. Fam. Code Ann. § 6.301 (West 1998).  Section 6.301, although not itself
jurisdictional, is akin to a jurisdictional provision in that it controls a party's right to maintain a suit
for divorce and is a mandatory requirement that the parties cannot waive.  Oak v. Oak, 814 S.W.2d
834, 837 (Tex. App.--Houston [14th Dist.] 1991, writ denied) ("The residency requirements of
section [6.301] are not jurisdictional, but, rather, prescribe the qualifications that must be met before
a court may grant a divorce.  Section [6.301] does not deal with jurisdiction . . . it controls the right
to maintain a suit.") (citations omitted) (4); Berry v. Berry, 612 S.W.2d 213, 216 (Tex. Civ.
App.--Beaumont 1980, writ dism'd) (stating that parties cannot waive residency requirement); In
re Marriage of Earin, 519 S.W.2d 892, 893 (Tex. Civ. App.--Houston [1st Dist.] 1975, no writ)
(holding that residency requirement is mandatory).  The public policy behind the domiciliary
requirement is to prevent forum shopping by divorce litigants.  Kopecinski v. Kopecinski, 627
S.W.2d 472, 473 (Tex. App.--Corpus Christi 1981, writ dism'd w.o.j.) (citing Beavers v. Beavers,
545 S.W.2d 29, 30 (Tex. Civ. App.--Waco 1976, no writ)); Berry, 612 S.W.2d at 473 ("[I]t is
readily apparent that Texas has not sought to cultivate the business of those . . . who may play fast
and loose with findings of domicile.").
	The failure of a divorce petition to properly allege residency renders the suit subject
to abatement.  Oak, 814 S.W.2d at 837 (citing Svensen v. Svensen, 629 S.W.2d 97, 98 (Tex.
App.--Dallas 1981, no writ) ("[A] petition that fails to allege the completion of the residency
requirement may be attacked by plea in abatement as premature.")); Kopecinski, 627 S.W.2d at 473
(citing Harrison v. Harrison, 543 S.W.2d 176, 177 (Tex. Civ. App.--Houston [14th Dist.] 1976, no
writ)).
	The record reveals that both parties are domiciled in the state of Virginia and were
when they filed their respective actions.  Neither Charles nor Gretchen satisfies Texas's domiciliary
requirement to pursue a divorce in this state.  Charles's "Original Petition for Declaratory Relief"
asserts that he "is a[n] individual resident citizen of Harris[on]burg, Virginia," and Gretchen "is an
individual resident citizen of Timberville, Virginia."  The record contains no indication that either
intends to move from Virginia to Texas.  This Court is thus presented with a novel situation wherein
neither party is seeking a divorce in a Texas court, and, if either were, the suit could not be
maintained because neither Charles nor Gretchen could satisfy the Texas domiciliary requirement. 
A Texas court, under the facts presented here, could not grant either party a divorce but would have
to abate the case until one party or the other established domicile. (5)  The record reflects no contact
with the state of Texas by either party since 1979.  A Texas district court is thus an inappropriate
forum for Charles's declaratory-judgment action concerning an issue central to his relationship with
Gretchen.
	We hold the lack of a justiciable controversy in Texas is fatal to Charles's suit for
declaratory relief. (6)  A trial court may only receive Uniform Declaratory Judgments Act jurisdiction
by virtue of a justiciable controversy.  Moore, 985 S.W.2d at 154.  Without a pending suit for
divorce or at least the threat of such suit in Texas, there is no justiciable controversy for Texas courts
to resolve, and Charles's action is no more than a request for an advisory opinion.  Texas courts lack
jurisdiction to render advisory opinions.  Texas Ass'n of Bus., 852 S.W.2d at 444. 

CONCLUSION
	For the above-stated reasons, we hold that the district court lacked jurisdiction to
entertain Charles's suit for declaratory judgment, reverse the district-court judgment, and dismiss
this cause.  


  
					Lee Yeakel, Justice
Before Justices Kidd, Yeakel, and Patterson
Reversed and Dismissed
Filed:   July 26, 2002
Publish
1.      	At this time, Texas law provided that the existence of an informal marriage, often referred to
as a "common-law marriage," could be proved "by evidence that . . . they 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."  Act of June 2, 1969, 61st Leg., R.S., ch. 888, § 1, 1969 Tex. Gen.
Laws 2707, 2717.  The marriage could be proved in "any judicial, administrative, or other
proceeding."  Id.  The law did not provide a limitation period within which a party to an informal
marriage was required to bring an action to present proof of the marriage.
2.      	In 1989, after Charles and Gretchen had moved to Virginia, the legislature amended the law
to provide "A proceeding in which a[n informal] marriage is to be proved . . . must be commenced
not later than one year after the date on which the relationship ended."  Act of May 29, 1989, 71st
Leg., R.S., ch. 369, § 9, 1989 Tex. Gen. Laws 1458, 1461.
 
	The legislature again amended the law in 1997 to provide: "If a proceeding in which a[n
informal] marriage is to be proved . . . 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."  Act of May 24, 1995, 74th Leg., R.S., ch. 891, § 1,
1995 Tex. Gen. Laws 4404, 4404 (codified Tex. Fam. Code Ann. § 2.401(b) (West 1998)).  The
amendment took effect September 1, 1995.  Id. § 2(a) at 4404.  The amendment, however, states that
it "does not permit an action to be commenced on or after [September 1, 1995] to prove the existence
of an informal marriage for which an action was barred before [September 1, 1995] for failure to
bring the action before the first anniversary of the date the relationship ended."  Id. § 2(c) at 4404. 
Charles argues that because the parties agree that they ceased to live together in 1992, the one-year
limitation provision of the 1989 amendment applies.  Gretchen asserts that, although they were under
different roofs, she and Charles maintained a relationship until Charles remarried in 1999 and thus
the two-year statute applies. 
3.      	As previously noted, this cause was filed March 23, 2000; Gretchen's Virginia divorce action
was filed April 5, 2000.
4.        Oak v. Oak, 814 S.W.2d 834, 837 (Tex. App.--Houston [14th Dist.] 1991, writ denied)
specifically addresses former section 3.21.  Current section 6.301 was adopted effective April 17,
1997.  The provisions are the same.  Compare Act of May 28, 1973, 63d Leg., R.S., ch. 577, § 13,
1973 Tex. Gen. Laws 1596, 1603, with Tex. Fam. Code. Ann. § 6.301 (West 1998).  The current
code is cited for convenience.
5.      	In a dissenting opinion in Svensen, Chief Justice Guittard observed that, under appropriate
circumstances, dismissal of an action for failure to satisfy the family-code residency requirement
might be appropriate.  See Svensen v. Svensen, 629 S.W.2d 97, 98-99 (Tex. App.--Dallas 1981, no
writ) (Guittard, C.J., dissenting) ("Ordinarily, if a plea in abatement can be promptly cured by an
amendment . . . the suit should not be dismissed without allowing the plaintiff a reasonable time to
cure the defect.  On the other hand, if the defect cannot be so readily cured, dismissal may be
proper.") (citations omitted).  One such circumstance might be when neither party manifests an intent
to satisfy family-code section 6.301.  
6.      	In so holding, we observe that there is no impediment to the Virginia court's considering Texas
law in determining whether Gretchen may establish an informal marriage.

