Bivians' Estate, In re

• Decision Date: 19 August 1982
• Docket Number: No. 5468,5468
• Citation: 98 N.M. 722,1982 NMCA 132,652 P.2d 744
• Parties: In re ESTATE OF Robert N. BIVIANS, Deceased. Lorrayne BIVIANS, Petitioner-Appellant, v. Diana Bivians DENK, Claimant-Appellee.
• Court: Court of Appeals of New Mexico

Page 744

652 P.2d 744

98 N.M. 722

In re ESTATE OF Robert N. BIVIANS, Deceased.

Lorrayne BIVIANS, Petitioner-Appellant, v. Diana Bivians DENK, Claimant-Appellee.

No. 5468.

Court of Appeals of New Mexico.

Aug. 19, 1982.

Certiorari Quashed Oct. 20, 1982.

Hunter L. Geer, P.A., Albuquerque, for petitioner-appellant

Stephen Joseph Vogel, Sullivan, Villella, Skarsgard & Noya, Albuquerque, for claimant-appellee.

OPINION

DONNELLY, Judge.

This is an appeal by Lorrayne Bivians from an order of the district court determining heirship in her father's estate. The court concluded that appellee, Diana Bivians Denk, was the widow of decedent Robert N. Bivians by virtue of a common law marriage, that decedent's entire estate was community property, and that decedent died intestate.

The central points raised on appeal are: (1) whether the evidence and findings support the trial court's conclusion that appellee and decedent entered a valid common law marriage; (2) whether the quitclaim deed executed by appellee to decedent, conveying her interest in their residence, was supported by adequate consideration; and (3) whether stock in decedent's insurance agency was owned by decedent as separate or community property. We reverse.

Decedent initially employed appellee in 1969 to work in his insurance agency in Alamogordo. Appellee and decedent were then married to other spouses, but subsequently obtained divorces. Thereafter, appellee and decedent formed a close personal relationship. In December, 1971, after being pressured by business associates, they revealed to friends, relatives and business associates that they planned to marry. After a trip to California, Arizona, and Mexico, they returned to Alamogordo and announced that they were married. Decedent and appellee never entered into a valid ceremonial marriage. Decedent had purchased a wedding ring for appellee, which she exhibited after returning from their trip. The couple continued to live together in New Mexico until they separated in 1978. They remained separated until decedent's death in March, 1979. Decedent and appellee remained legally domiciled in New Mexico from the inception of their relationship through decedent's death.

At the time of decedent's divorce from his first wife, he owned 700 shares of stock in Western Insurance Agency, Inc., two automobiles, and other property. During the relationship of appellee and decedent they bought and sold several homes. In 1975, they purchased a residence in Albuquerque which decedent owned at the time of his death. It was then appraised at about $135,000.00, subject to a mortgage in the approximate amount of $35,000.00. When the couple separated in 1978, appellee remained employed in decedent's insurance business. She executed and delivered to decedent a quitclaim deed on the Albuquerque residence in return for payments by him of approximately $2,400.00 applied to the purchase of a mobile home. Appellee also received a substantial increase in her salary and a car.

The lower court found that appellee and decedent consummated a "martial [sic] relationship by cohabiting together as husband and wife in El Paso, Texas, in the early months of 1972 and in Colorado on at least several occasions in 1972."

The court also adopted the following findings:

9. That Robert N. Bivians [decedent] and Diana Bivians [appellee] lived together as husband and wife from December 1971, and during such time they continuously cohabited with one another in the States of Texas and Colorado, introduced themselves as husband and wife, held themselves to be married to all people including the mother and father of Robert N. Bivians and the family of Diana Bivians.

....

A. purchased and sold real property as husband and wife;

B. filed both federal and state income tax returns as husband and wife;

C. listed themselves on their employment records as husband and wife;

D. opened bank accounts as husband and wife;

....

G. purchased shares of stock as husband and wife;

H. entered into a Real Estate Purchase Contract as husband and wife.

....

13. The deceased, Robert N. Bivians died intestate and left a writing which purported to be his Last Will and Testament but was only witnessed by one person and referred to Diana Bivians as his "present wife."

The court concluded that decedent and appellee "were married under the common law statutes of Texas during the early months of 1972 and under the common law statutes of Colorado in 1972, and were husband and wife on the date of his death on March 3, 1979." In addition to its conclusion that the parties had entered into a common law marriage, the trial court also concluded that the quitclaim deed executed by appellee to the Albuquerque residence was invalid because of inadequate consideration, and that 2,077 shares of stock held by decedent in Western Insurance Company at the time of his death were community property.

I. Claim of Common Law Marriage

Appellant contends that the evidence is insufficient to support the trial court's findings and conclusion that the parties had entered into a valid common law marriage in Texas and Colorado. Appellant also attacks the sufficiency of the court's findings, asserting they do not support the court's conclusion that the parties had consummated a common law marriage.

In New Mexico, marriage is a civil contract which must be licensed. Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (Ct.App.1980); State v. Lard, 86 N.M. 71, 519 P.2d 307 (Ct.App.1974). It is also a contract in which the public is interested and to which the state is a party. See Sec. 40-1-10, N.M.S.A.1978; see also Catlett v. Chestnut, 107 Fla. 498, 146 So. 241 (1933).

Although this state does not authorize common law marriages, it will recognize such marriages if valid in the jurisdiction where consummated. Gallegos v. Wilkerson, 79 N.M. 549, 445 P.2d 970 (1968); Matter of Estate of Willard, 93 N.M. 352, 600 P.2d 298 (Ct.App.1979). New Mexico applies the rule of comity, that the law of the place of contract governs the validity of a marriage. Ferret v. Ferret, 55 N.M. 565, 237 P.2d 594 (1951).

Our inquiry must start with examination of the substantive laws of both Texas and Colorado. It is undisputed that when decedent and appellee returned from their "wedding trip," their travels had taken them to Arizona, California, Mexico, and back to New Mexico. Neither of these states recognize common law marriage, see H. Clark, Jr., Law of Domestic Relations Sec. 2.4 at 45 (1968), and there is no suggestion that a "common law marriage" occurred in Mexico. Appellee also testified that during 1972 she and decedent made several business and pleasure trips to Texas and Colorado, which authorize common law marriage, and there held themselves out to be husband and wife.

(A) Texas Law

In Texas, the elements of a common law marriage are: (1) an agreement presently to be husband and wife; (2) living together as husband and wife in Texas; and (3) holding each other out there to the public as such. Tex.Fam.Code Ann. Sec. 1.91(a)(2) (Vernon 1975); see Collora v. Navarro, 574 S.W.2d 65 (Tex.1978); Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.1963); In re Glasco, 619 S.W.2d 567 (Tex.Civ.App.1981). Applying these requirements, appellee failed to establish a present agreement to enter a valid common law marriage in Texas. Proof of a present intention to be married in Texas is essential.

In Texas, an agreement to be husband and wife may be implied; it need not be an express agreement and may be inferred from evidence which establishes the other two constituent elements of a common law marriage. Humphreys v. Humphreys, supra; In re Glasco, supra;

The rule is succinctly explained in Comment, Common-Law Marriage in Texas, 21 Sw.L.J. 647, 648 (1967), where it is noted:

An agreement between the parties to be husband and wife is essential to the creation of a common-law marriage. The trier of fact must specifically find that such an agreement existed, that the parties intended that their agreement create a marriage, and that it was to be an immediate and permanent relationship.

See also Schwingle v. Keifer, 105 Tex. 609, 153 S.W. 1132 (1913); Moore v. Jordan, 328 S.W.2d 343 (Tex.Civ.App.1959); Associated Indemnity Corporation v. Billberg, 172 S.W.2d 157 (Tex.Civ.App.1943).

Under Texas law, where the original relationship between the parties was illicit in origin but circumstances have changed, a subsequent common law marriage may be shown by circumstantial evidence. However, the evidence must exclude the inference that the original illicit relationship was intended to continue and must show formulation in Texas of a new matrimonial intent by each of the parties. Howard v. Howard, 459 S.W.2d 901 (Tex.Civ.App.1970).

Because of the mobility of modern society, the possibility of fraud arising from claims of common law marriage and the uncertainty which such claims of marriage inject into the affairs of individuals, it is not enough to establish a common law marriage that the parties have together made occasional visits to a jurisdiction that recognizes common law marriages. Nor does an occasional holding out of marriage or mere sexual relationship in a state authorizing common law marriages result in the formulation of a bona fide marriage. Grant v. Superior Ct. in and for County of Pima, 27 Ariz.App. 427, 555 P.2d 895 (1976); Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361 (1960). If the original relationship of the parties in New Mexico is illicit and the couple continue to maintain legal residence in New Mexico, a common law marriage cannot be inferred absent proof of each element necessary to establish a common law marriage and a showing of substantial contacts by the parties with the state where the alleged common law marriage occurred.

When the decedent and appellee returned from their alleged "wedding trip," they continued for several years to hold themselves out as married in this state and exhibited indicia of...