Roach v. Roach

• Citation: 672 S.W.2d 524
• Decision Date: 30 March 1984
• Docket Number: No. 07-82-0101-CV,07-82-0101-CV
• Parties: J. Nelson ROACH, Appellant, v. Jodi Ann ROACH, Appellee.
• Court: Texas Court of Appeals

Page 524

672 S.W.2d 524

J. Nelson ROACH, Appellant, v. Jodi Ann ROACH, Appellee.

No. 07-82-0101-CV.

Court of Appeals of Texas Amarillo.

March 30, 1984.

Rehearing Denied May 23, 1984.

George Whittenburg, Whittenburg, Whittenburg & Schachter, Amarillo, for appellant.

Robert L. Templeton, Templeton & Garner, Amarillo, for appellee.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

REYNOLDS, Chief Justice.

J. Nelson Roach brings this appeal from a judgment, rendered with the aid of a jury verdict, decreeing the dissolution of his 16 November 1974 ceremonial marriage to Jodi Ann Roach and a division of the estate of the parties. He presents, with sixteen points of error, complaints to the jury's failure to find a 17 March 1972 common law marriage between the parties, to certain jury findings, to the trial court's classification of specific items of property, to the court's refusal to award him any reimbursement for community funds used to benefit Mrs. Roach's separate property, to the exclusion of evidence, and to the court's division of the properties. Mrs. Roach resists the complaints, but she has proposed a conditional reformation of the judgment.

Notwithstanding the joinder of all of the issues, it is appropriate only to address the common-law-marriage issue before we express the rationale why the trial court erred in finding that a material portion of the real estate, evidenced to be co-owned partnership property, was community property, and in awarding that property to Mrs. Roach in the division of the estate of the parties. The errors dictate a reversal and remand as to the property division.

In the trial court, Mr. Roach sought to establish, but the jury failed to find, that a common law marriage existed since 17 March 1972 between him and Mrs. Roach. ¹ On appeal, Mr. Roach contends, with his twelfth point of error, that the jury's negative answer to the common law inquiry, special issue no. 1, an issue on which he had the burden of proof, is against the great weight and preponderance of the evidence. ²

To establish the common law marriage alleged, Mr. Roach had the burden to prove (1) an agreement presently to be husband and wife, (2) living together as husband and wife, and (3) holding each other out to the public as husband and wife. Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex.1981). In determining whether, as Mr. Roach contends, the jury's failure to find that he carried his burden is against the great weight and preponderance of the evidence, we must review and consider all of the evidence bearing on the matter. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973).

It is undisputed that Mr. and Mrs. Roach began living together in 1971 while she was still married to her first husband, and they lived together until the divorce action was filed. Mrs. Roach obtained a divorce from her first husband on 17 March 1972, the date of the common law marriage alleged by Mr. Roach, and Mr. and Mrs. Roach were ceremonially married on 16 November 1974.

The record contains testimony from two former employees of Mrs. Roach that Mr. and Mrs. Roach were neither married nor proclaimed they were married until their ceremonial marriage in 1974. The evidence shows that on 14 September 1972, Mr. Roach wrote a check payable to the order of Jodi Bruce; in November of 1972, Mr. Roach completed a country club membership application as a single man; on 1 April 1974, a letter received from a bank was addressed to Jodi A. Bruce & J. Nelson Roach; and as of 30 September 1974, at least one savings account was maintained in the name of Jodi Bruce.

In giving a deposition, Mr. Roach testified that he was married on 16 November 1974; yet, it remains unclear whether he was referring to the ceremonial or common law marriage. Mr. Roach further testified that he did not remember telling anyone, including his mother and sons, that he was married prior to the ceremonial marriage, but he stated that he and Mrs. Roach agreed to be married in the "eyes of God" and that he did "hold her out as ... being married to her." However, when Mr. Roach filed his original petition for divorce, he alleged that they "were married during the month of November, 1975 (sic )"; he did not allege the 17 March 1972 common law marriage until he filed his first amended petition in October of 1981.

On the other hand, the evidence shows 1972 and 1973 amended joint income tax returns in the name of J. Nelson Roach and Jodi A. Roach, as well as a letter written by Mrs. Roach on 11 February 1974 to the Texas Real Estate Commission stating that she was recently married and requesting the name on her Real Estate Broker's License be changed to Jodi Bruce Roach. The evidence also includes an assumed name certificate dated 11 March 1974 for J & J Enterprises, a partnership formed by the Roaches, signed by Jodi Bruce Roach and J. Nelson Roach.

In explanation, Mrs. Roach testified that she used the Roach name prior to the ceremonial marriage because she was embarrassed that they were living together, that she signed the joint income tax returns at Mr. Roach's request without reading them, and that she "lied" in telling the Texas Real Estate Commission that she was recently married. She also testified that Mr. Roach did not contend there was a common law marriage until after he was confronted with the partnership agreement which stated that her separate property deeded to the partnership would remain her separate property.

Although a common law marriage may be proved by the conduct of the parties in living together and representing to others that they are married, from which an agreement to marry may be inferred, still each case of a claimed common law marriage must be determined upon its own facts. Estate of Claveria v. Claveria, supra; Tex.Fam.Code Ann. § 1.91(b) (Vernon 1975). In the claimed common law marriage here, there is a conflict in the evidence whether the parties held themselves out to the public to be husband and wife and, thus, whether there was an agreement to marry. The jury, as the exclusive judge of the facts proved, the credibility of the witnesses, and the weight to be given their testimony, was in the best position to resolve the conflict. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951). After considering all of the evidence which was before the jury when it resolved the conflict, we cannot say the jury's failure to find that Mr. Roach established all of the elements of a common law marriage is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. The twelfth point of error is overruled.

With his fourth point, Mr. Roach complains that the trial court's finding that the real property legally described as Lot No. 5, Block No. 7, Crestview Unit No. 2, in Amarillo, Potter County, Texas, and located at 4223 West 2nd Street in Amarillo, is community property is not supported by legally sufficient evidence or, alternatively, is against the great weight and preponderance of the evidence. And with his fifth point, Mr. Roach contends that the court erred as a matter of law in awarding the realty to Mrs. Roach because the uncontroverted evidence establishes that it is his separate property.

At the outset, we are confronted with Mrs. Roach's objections that there are no pleadings, and no jury submission or finding, that the realty was Mr. Roach's separate property. Notwithstanding the lack thereof, we are not persuaded, as Mrs. Roach argues, that these are obstacles which prevent Mr. Roach from raising his complaints and contention.

The attitude toward pleadings in divorce actions always has been one of liberal construction, particularly when the pleadings concern property division. Lindsey v. Lindsey, 564 S.W.2d 143, 145 (Tex.Civ.App.--Austin 1978, no writ); Bagby v. Bagby, 186 S.W.2d 702, 704-05 (Tex.Civ.App.--Amarillo 1945, no writ); Fain v. Fain, 6 S.W.2d 403, 406 (Tex.Civ.App.--Galveston 1928, writ dism'd). This attitude is understandable when it is remembered that the trial court is charged with making "a division of the estate of the parties," i.e., community property only, Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex.1977), "in a manner that the court deems just and right, having due regard for the rights of each party ...." Tex.Fam.Code Ann. § 3.63(a) (Vernon Supp.1984). Thus, although there is the presumption, albeit rebuttable, that property possessed by either spouse during or on dissolution of the marriage is community property, Tex.Fam.Code Ann. § 5.02 (Vernon 1975), the court, to discharge its duty, may permit evidence under general pleadings as to the character and nature of both community and separate property. Schreiner v. Schreiner, 502 S.W.2d 840, 846 (Tex.Civ.App.--San Antonio 1973, writ dism'd); Cox v. Cox, 439 S.W.2d 862, 864-65 (Tex.Civ.App.--San Antonio 1969, no writ).

Here, although Mrs. Roach alleged that she was possessed of separate property, Mr. Roach did not allege that the West 2nd Street realty is his separate property; however, in his application for a temporary restraining order, he requested that Mrs. Roach be restrained from "[s]elling, transferring, ... any of the parties' property, ... whether the same be separate, community or mixed." Each of the parties prayed for general relief, and Mrs. Roach did not specially except to Mr. Roach's pleadings on the ground of generality.

Similar pleadings have been held sufficient, particularly in the absence of a special exception, to support the introduction of evidence as to the character and nature of all property, both community and separate, possessed by the parties so that the court could determine and make the required division of the estate of the parties. Lindsey v. Lindsey, supra. Moreover, Mrs. Roach did not object to the introduction of evidence as to the character and nature of the West 2nd Street property. The issue, then, was effectively tried by consent. Zimmerman v. Zimmerman, 348...