Opinion
No. 05-10-00522-CV
01-30-2012
REGINA SANDERS BRUCE, Appellant v. CLAYTON C. ELLIOTT, Appellee
AFFIRM and Opinion Filed January 30, 2012
On Appeal from the 256th District Court
Dallas County, Texas
Trial Court Cause No. 09-17302-Z
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice O'Neill
Appellant Regina Sanders Bruce appeals an order granting appellee Clayton C. Elliott's motion for no-evidence summary judgment. In two issues, Regina contends: (1) the trial court erred in refusing to consider summary judgment evidence that cured earlier defects to her summary judgment evidence, and (2) her summary judgment evidence - as cured - raised a genuine issue of material fact. For the following reasons, we affirm the trial court's judgment.
Regina filed a petition for divorce alleging she married Clayton "on or about August 1, 2004" and they ceased to live together on or about June 9, 2009. She sought a divorce and division of the marital estate. Clayton filed a no-evidence motion for summary judgment asserting there is no evidence he and Regina were ever married - either formally or informally in a common-law marriage. Regarding informal marriage, he alleged there was no evidence of any of the elements of common-law marriage including that they had "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."
Regina filed a response to the no-evidence motion. In her response, she did not direct the trial court to any specific summary judgment evidence. Instead, she generally alleged "the attached evidence shows a material issue of fact exists as to the parties' agreement to be married, their subsequent cohabitation in the state of Texas, and their representation to others that they were married." At the same time that she filed the response, she filed her own affidavit with over 200 pages of attached exhibits, an affidavit of a store employee, and affidavits of two friends.
Clayton filed numerous objections to Regina's summary judgment proof raising both defects of form and substance. Following a hearing on the motion for summary judgment, but before the trial court ruled on the motion or the objections, Regina filed a "Supplemental Response" with a "Supplemental Affidavit" which she alleged cured "many of the objections raised in the hearing" and provided "additional evidence of a marriage between the parties." The supplemental response again did not direct the trial court to any specific summary judgment evidence. Regardless, the trial court refused to consider the untimely response or the evidence attached thereto and granted Clayton's no- evidence motion. This appeal followed.
Regina raises two related issues. In her first issue, Regina contends the trial court erred in refusing to consider evidence filed with her supplemental response because she is entitled to cure any defects of form before a summary judgment can be granted. In her second issue, Regina contends the trial court's refusal to consider evidence filed with the supplemental response was harmful because the evidence raised a fact issue on each element of her claim. A trial court must grant a no-evidence motion for summary judgment "unless the respondent produces summary judgment evidence raising a genuine issue of material fact." Tex. R. Civ. P. 166a(i). The nonmovant need not marshal its proof, but its response must point out evidence that raises a fact issue on the challenged element. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). The alleged error in this case is premised on Regina's assumption that the summary judgment was granted because of defects of form in her summary judgment evidence that she was entitled to cure and did cure. However, Regina's response to the motion for summary judgment did not direct the trial court to any summary judgment evidence. Nor did her supplemental response direct the trial court to any summary judgment evidence. Regina's failure to point out any evidence that supported the challenged elements alone supports the trial court's granting of the no-evidence motion. Lundstrom v. United Servs. Auto Ass'n-CIC, 192 S.W.3d 78, 98 (Tex. App.-Houston [14th Dist.] 2006, no writ).
Further, even assuming Regina had been permitted to cure defects of form, we conclude she has not shown reversible error. A common law marriage may be proved by evidence that: (1) the parties agreed to be married and after the agreement; (2) they lived together in Texas as husband and wife; and (3) there represented to others that they were married. Tex. Fam. Code Ann. § 2.401(a)(2) (West 2006); Lewis v. Anderson, 173 S.W.3d 556, 559 (Tex. App.-Dallas 2005, pet. denied). To establish an agreement to be married, evidence must show the parties intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife. Small v. McMaster, 352 S.W.3d 280, 283 (Tex. App.-Houston [14th Dist.] 2011, pet. filed); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.-Houston [1st Dist.] 1991, writ denied). The proponent of a common-law marriage 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, 173 S.W.3d at 559.
In her brief, Regina generally asserts she raised a fact issue on each element of informal marriage and then directs this court to evidence showing the parties lived together as a married couple and held themselves out to the public as a married couple. She does not specify what evidence she is relying on to show an agreement to be married in the first instance. Nor does she specify whether she is relying on direct or circumstantial evidence of an agreement to be married. Nevertheless, we have reviewed her affidavit and conclude it contains no direct evidence of an agreement to be married. Regina did state generally in an introductory paragraph "[s]ome years ago, [Clayton] and I, single people, agreed to be married . . . " However, the trial court struck that portion of the affidavit as conclusory. Regina does not contend the trial court erred in doing so and does not contend she was entitled to correct that defect in substance. See Threlkeld v. Urech, 329 S.W.3d 84, 89 (Tex. App.-Dallas 2010, pet. denied) (a conclusory statement in an affidavit is a defect of substance for which the trial court is not required to give an opportunity to cure). Regina must thus rely on circumstantial evidence that she and Clayton agreed to be married.
An agreement to be informally married, like any ultimate fact, may be established by direct or circumstantial evidence. Russell, 865 S.W.2d at 931. Evidence of cohabitation and "holding out" in some cases may constitute some evidence of an agreement to be married. However, it is difficult to infer an agreement to be married in modern society from cohabitation. See Russell, 865 S.W.2d at 932-33 (citing Joseph W. McKnight, Family Law; Husband and Wife, 44 Sw.L.J. 1, 2-3 (1990)). Thus, evidence of holding out must be particularly convincing to be probative of an agreement to be married. See id. Occasional informal references to another as their spouse will not prove an agreement to be married. See id.
The question we must determine is whether there is any circumstantial evidence that the parties had agreed to a present, immediate, and permanent marital relationship. Here, Regina does not direct us to any evidence that she asserts specifically shows an agreement to be married. Instead, she generally asserts she raised evidence of all three elements and lists the evidence on which she relies. It is undisputed that the parties lived together as a couple in an intimate relationship. But the only evidence of "holding out" that is referenced in Regina's brief is evidence that Clayton sometimes referred to her as his wife in stores and Clayton did not deny when other people introduced Regina as his wife. Clayton's isolated casual references to sales people to Regina as his wife and his failure to correct other people's references to her as his wife might constitute more than a scintilla of evidence of holding out. However, we conclude it is no evidence to support a finding that they had an agreement to be married. Therefore, Regina was not harmed by the trial court's refusal to allow her to cure defects in her summary judgment proof.
We affirm the trial court's judgment.
MICHAEL J. O'NEILL
JUSTICE
100522F.P05