Russell v. Russell

• Decision Date: 24 November 1993
• Docket Number: Nos. D-3135,D-3148,s. D-3135
• Citation: 865 S.W.2d 929
• Parties: James Lambie RUSSELL, Petitioner, v. Margaret Ann RUSSELL, Respondent. Vivian Alice WEABER, Petitioner, v. Ronald Kent LORENSEN, Respondent.
• Court: Texas Supreme Court

Page 929

865 S.W.2d 929

James Lambie RUSSELL, Petitioner, v. Margaret Ann RUSSELL, Respondent.

Vivian Alice WEABER, Petitioner, v. Ronald Kent LORENSEN, Respondent.

Nos. D-3135, D-3148.

Supreme Court of Texas.

Nov. 24, 1993.

Rehearing Overruled in No. D-3135 March 30, 1994.

Louis Dugas, Jr., Orange, Michael D. Matheny, Beaumont, for petitioner in No. D-3135.

James Sparks, Jr., Jack Lawrence, Beaumont, for respondent in No. D-3135.

Ron Uselton, Sherman, for petitioner in No. D-3148.

R.J. Hagood, Denison, for respondent in No. D-3148.

OPINION

HIGHTOWER, Justice.

In these consolidated cases, we consider the effect of a 1989 amendment to section 1.91 of the Texas Family Code, entitled "Proof of Certain Informal Marriages," concerning evidence of an agreement to be "informally" married. In each case, the trial court found that an informal marriage existed. The courts of appeal, however, reached conflicting results. In Russell v. Russell, the Ninth Court of Appeals affirmed the existence of an informal marriage although it reversed and remanded the case to the trial court to determine when the informal marriage began. 838 S.W.2d 909. In Lorensen v. Weaber, the Fifth Court of Appeals held that there was no evidence that the parties agreed to be married, reversed the trial court's judgment and rendered judgment that a valid marriage did not exist. 840 S.W.2d 644. We hold that under section 1.91 of the Family Code, as amended in 1989, an agreement to be married may be established by direct or circumstantial evidence. For the reasons explained herein, we reverse the judgments in Russell v. Russell and Lorensen v. Weaber and remand those causes to the Ninth and Fifth Courts of Appeal for further proceedings consistent with this opinion.

In Russell v. Russell, James and Margaret Russell were ceremonially married in Texas in 1981. In the period before the ceremonial marriage--1964 to 1981--the parties cohabited intermittently and had five children, all supported and acknowledged by James. Margaret alleged that she and James were married on or about April 17, 1964. The trial court, sitting without a jury, found that there was a common law marriage which began March 22, 1972. The court of appeals, interpreting the 1989 amendment to section 1.91(b) of the Texas Family Code, affirmed the existence of an informal marriage although it reversed and remanded the case to the trial court to determine when the informal marriage began. Concerning the 1989 amendment, the court of appeals stated "that regardless of the amendment of sec. 1.91(b), an agreement to be married may be inferred from direct or circumstantial evidence which preponderates that the parties lived together in the State of Texas and did, in Texas, represent to others that they were married." 838 S.W.2d at 913.

In Lorensen v. Weaber, Vivian Weaber and Ronald Lorensen began cohabitating on or about February 6, 1982. Lorensen is a pipefitter and his job required frequent moves. In January 1991, the couple separated and Weaber filed suit for divorce in February 1991. The trial court sitting without a jury found that the parties were married, without formalities, on February 16, 1982. The court of appeals held that there was no evidence that the parties agreed to be married, reversed the trial court's judgment and rendered judgment that a valid marriage did not exist.

I.

Weaber and Russell argue that under the 1989 amendment to section 1.91 of the Texas Family Code, an agreement to be "informally" married may be established by direct or circumstantial evidence. We agree.

Common law marriages have been recognized in Texas since 1847. Tarpley v. Poage's Adm'r, 2 Tex. 139, 149 (1847). From this beginning, Texas has rejected the necessity of ritual formalities to establish the marriage relationship. However, Texas' recognition of common law marriages has been described as "grudging." Kathryn S. Vaughn, Comment, The Recent Changes to the Texas Informal Marriage Statute: Limitation or Abolition of Common-Law Marriage?, 28 HOUS.L.REV. 1131, 1150 (1991) (hereinafter Recent Changes ). See Texas Employers' Insurance Ass'n v. Elder, 274 S.W.2d 144, 147 (Tex.Civ.App.--Fort Worth 1954), aff'd on other grounds, 155 Tex. 27, 282 S.W.2d 371 (1955) ("[t]he law does not favor, but merely tolerates ... common-law marriages....").

Despite strong pressure to do so, in 1970 the Texas legislature refused to abolish common law marriages when it enacted Title 1 of the Family Code. Recent Changes, 28 HOUS.L.REV. at 1150; Woodrow M. Bonesio, Comment, Marriage and Divorce Under the Texas Family Code, 8 HOUS.L.REV. 100, 107 (1970). As enacted, section 1.91 stated:

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

(1) a declaration of their marriage has been executed under Section 1.92 of this code; or

(2) 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.

(b) In any proceeding in which a marriage is to be proved under Subsection (a)(2) of this section, the agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married.

In sections 1.91(a)(1) and 1.92-95, the legislature added a provision allowing a couple to file a declaration of informal marriage with the county clerk. Although such a declaration constitutes prima facie proof of the parties informal marriage, the parties need not make the declaration to have a valid common law marriage.

In 1989, some members of the legislature attempted to abolish common law marriage. See Tex.H.B. 588, 71st Leg., R.S. (1989); Recent Changes, 28 HOUS.L.REV. at 1151. The effort failed, but the legislature amended section 1.91(b) to make proof of common law marriages more difficult in Texas. See Act of June 14, 1989, 71st Leg., R.S., ch. 369, § 9, 1989 Tex.Gen.Laws 1458, 1459 (codified at Tex.Fam.Code Ann. § 1.91(b)). Section 1.91 now states:

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

(1) a declaration of their marriage has been executed under Section 1.92 of this code; or

(2) 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.

(b) A proceeding in which a marriage is to be proved under this section must be commenced not later than one year after the date on which the relationship ended or not later than one year after September 1, 1989, whichever is later.

(Emphasis added). Prior to the 1989 amendment, section 1.91 permitted courts to infer or imply the couple's marriage agreement from evidence which established cohabitation and public representation. See Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex.1981); Howard v. Howard, 459 S.W.2d 901, 903-04 (Tex.Civ.App.--Houston [1st Dist.] 1970, no writ).

II.

For suits filed on or after September 1, 1989, the existence of a common law marriage in Texas requires proof of each of the three elements of an informal marriage set forth in section 1.91(a)(2) no later than one year after the relationship ended. The elements are (1) an agreement to be married, (2) after the agreement, the couple lived together in this state as husband and wife, and (3) the couple represented to others that they were married. The 1989 amendment defines the burden of proof for informal marriages and eliminates the ability of courts to simply infer an agreement to marry from evidence that they lived together as husband and wife and represented to others that they were married. One commentator described the effect of the 1989 amendment as follows:

Rather than abolishing the doctrine of informal marriage as had been proposed on numerous occasions in the past, the legislature tightened the rules for reliance on the doctrine by repealing the provision that allowed a court to infer an agreement to be married from proof of cohabitation and holding-out. This amendment, therefore, raises the question of how the elements of agreement may hereafter be proved.

In the future one of two basic fact patterns will develop depending on whether both parties are living. If both parties to the alleged informal marriage are alive, one of them will commonly deny the agreement. When the other party to the alleged informal union offers direct evidence of an express agreement to be presently married, the trier of fact will be required to weigh the testimony in the context of other evidence of the relationship. If one of the parties is dead, the survivor will be required to meet the limitation imposed by Evidence Rule 601(b) by providing corroboration of an alleged transaction with the decedent. Under most circumstances the proponent of the marriage will have an easier case in the latter instance unless there is convincing evidence that the decedent denied the existence of the agreement. If evidence of an express agreement to marry is not offered, the fact finder will have to treat the facts of cohabitation and holding-out as circumstantial evidence of the agreement in order to find a tacit agreement to be married. This process is, however, virtually identical to the prior process of inference. But by repealing the provision authorizing the fact-finder to infer an agreement from proof of two elements of an informal marriage, the legislature has not excluded a finding of a tacit agreement to be married. In making such a finding, however, it seems that the evidence of holding-out must be more convincing than before the 1989 agreement.

In a society in which non-marital cohabitation for extended periods of time is far more common than it once was, the fact-finder will have to weigh the evidence of a tacit agreement more carefully than in the past. As the statute now stands, an...