Voula Eris v. Don Phares

• Decision Date: 22 February 2001
• Docket Number: No. 01-98-01218-CV,01-98-01218-CV
• Citation: 39 S.W.3d 708
• Parties: <!--39 S.W.3d 708 (Tex.App.-Houston 2001) VOULA ERIS, Appellant v. DON PHARES, Appellee Court of Appeals of Texas, Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 708

39 S.W.3d 708 (Tex.App.-Houston [1st Dist.] 2001)

VOULA ERIS, Appellant v. DON PHARES, Appellee

No. 01-98-01218-CV

Court of Appeals of Texas, Houston (1st Dist.).

February 22, 2001

On Appeal from the 245th District Court Harris County, Texas Trial Court Cause No. 97-33511

[Copyrighted Material Omitted] Panel consists of Justices Cohen, Jennings, and Duggan.^*

OPINION

Lee Duggan, Jr., Justice

This is an appeal from a judgment (1) finding that appellant, Voula Eris, and appellee, Don Phares, were married by January 30, 1997, (2) granting them a divorce, (3) dividing the marital estate, and (4) setting aside a January 30, 1997 transfer of real property from Phares to Eris. Eris asserts five points of error. We reverse the judgment and remand to the trial court.

Facts

The parties met at a club in June or July 1995 and began to date regularly. Phares was recently divorced, and Eris was a single mother.

Phares testified that the relationship became intimate; that Eris moved into his home within several weeks, bringing her cosmetics, clothing, and personal effects; that she did not return to her own home with any regularity; and that he could not recall a night after she moved in when she slept at her old residence.

Eris admitted that she spent the night with Phares and traveled with him, but denied that she moved in with him. She testified that during their relationship David Lane (an employee and a witness for Phares) and another man lived in Phares's home; that Phares's son lived in back; and that she lived with her children in her house, where she also received her mail and kept her telephone and furniture. Both parties testified they went places together and had sexual relations and that Phares asked Eris to marry him within two to six months after they began dating.

According to Phares, Eris told him, "Baby, we don't have to get married to be married. You've had problems with your credit since your heart trouble. Let's get your debts straight and then we'll do it right." From this statement, Phares understood he and Eris were married, albeit not ceremonially. Phares stated he wanted to be married to Eris, agreed to marry her, and thought he was married to her. He testified she did not tell him she did not want to marry him; rather, she said she did not want to have a ceremony because she wanted to keep her own name to protect her credit. He testified she must have had some understanding of the legality of a common-law marriage because she said they were married. He testified she was present on several occasions when he represented to others that she was his wife and she did not deny they were married. He said he never bought her a ring because she said she did not want one. He admitted he did not have any documents to prove they were married and she did not change her name.

According to Eris, when Phares asked her to marry him, she made it clear she did not want to marry again. She denied he referred to her as his wife in her presence; instead, he called her "the Greek." She stated she refused the ring he offered her because she recognized it was a symbol of marriage and she did not want to marry.

The couple opened a joint bank account in January 1996. Eris testified Phares told her the IRS took his money anytime he had it in a bank account in his own name, so she agreed for her name to be on the account. Eris stated her name was on the bank papers establishing the account only and Phares had his name alone put on the checks.

During the relationship, Phares had financial problems. Specifically, he owed $18,000 in back taxes on his house and had difficulty making his house payment. Eris testified that she loaned him around $20,000 over the course of their relationship and that, on at least one occasion, he ran charges on her American Express card through his company to get money.

In August or September 1996, Phares began to talk to Eris about selling his home¹ to her. He testified an attorney suggested he put the house in her name. He stated Eris told him on several occasions that if the house were in her name he would not have to worry because it would always be his; that he relied on these assurances; and that he would not have put the house in her name if he had not believed it would always be his and he would get it back at some point.

Eris denied she influenced Phares to sell the house and stated that all her actions in connection with the house sale were at the direction of either Phares or his lawyer. She stated Phares owed her money and told her he would pay her and all his debts if she would buy the house.

On the day before the $21,500 seller's lien on Phares's house was to be foreclosed, Eris's daughter, Jackie, purchased the lien with funds Eris loaned her for that purpose. Later, Eris purchased the house from Phares and received a warranty deed describing her as a "single" person. At the closing on January 30, 1997, Eris' daughter's lien was paid. Eris borrowed $23,065.37 from the Bank of Houston to make the down payment on the house. The American Title Company settlement statement showed that Phares received $23,833.69 as a result of the sale. He endorsed his check to Eris, and she repaid the loan to Bank of Houston.² Phares testified that as a result of the transaction between them, an IRS lien, the property taxes due on the house, and Eris's daughter's lien were all paid. Eris testified she also paid off a judgment against Phares in favor of his former divorce attorney.

Eris testified she and Phares did not agree before the closing that he would retain an interest in the house after she purchased it. In contrast, Phares testified they agreed he would pay the mortgage as he had before the transfer. Phares admitted that the settlement statement showed that he had no obligation on Eris's purchase money note to Bank of Houston. He testified he attempted to make the house payments after the transfer, but she would not let him; however, he could not recall whether she made mortgage payments out of their joint account. She testified, and he admitted on cross-examination, that he made no house payments after the sale until the trial court ordered him to do so in July 1997.

Phares testified that after he paid the back taxes, in February or March 1997, he first asked Eris to put the house title back in his name and that he repeated his request three or four more times. She would not, and she refused to allow his son in the house as well. Nonetheless, he testified, she continued to assure him the house would always be his.

The two separated in April 1997. Phares testified his "flag went up" when Eris would not let him make the house payments or allow his son in the home, so he asked her to leave. She left the night he asked her to, and she has not returned. He testified he trusted her and she set him up. Even though he acknowledged she was legally obligated to pay the house note and he was not, he maintained they orally agreed he would pay the note. He also admitted he still owes her $13,000 he borrowed from her during the marriage.

Each party introduced several witnesses who testified to their observations about the couple. Several of Phares's friends and employees testified they thought, for various reasons, the two were married. Rodney Miller testified that when he met them in October 1996, Phares introduced Eris as his wife and she did not indicate she disagreed. Miller also thought Eris was Phares's wife because her clothes were on the floor in the main bedroom. Further, Eris fixed Miller a drink and acted like a hostess.

Luke Ash, one of Phares's employees, testified that Eris lived with Phares and that Phares told him Eris was going to put the house in her name, but she wanted no part of it in return.

Wesley Pybus, another of Phares's employees, testified that Eris said she and Phares did not need to be married to be married. Pybus testified that the two lived together as man and wife; that he saw her clothing and other personal items, such as picture frames and furniture, at Phares's home; and that he, Pybus, heard her say on several occasions that the house belonged to Phares.

Dawn Currie, a Bank of Houston employee, met Eris when Phares brought her to the bank to open a joint account. Currie testified that nothing in the account paperwork indicated the two were married and neither ever referred to the other as husband or wife. Currie testified that Eris borrowed money from the bank to help Phares keep his house; she thought Eris was going to buy the house so Phares wouldn't lose it.

Ray Villalovas, Phares's neighbor, friend, and insurance agent of 10 years, testified that although Phares introduced Eris to him as his wife in Eris's presence, Eris never referred to Phares as her husband. Villalovas had meals with the two on several occasions, and Eris always "appeared to be" Phares's wife. Villalovas saw Eris's car in the driveway every morning and evening and thought she lived at Phares's home.

David Lane, Phares's employee and former tenant, testified that Eris began living with Phares in July 1995. Lane also provided testimony about which Eris complains on appeal: that she told Lane one of her former employers had accused her of stealing.

Palmer Didion testified that the two appeared to be husband and wife; that he never heard either of them say they had agreed to be married; but that he heard Phares introduce Eris as his wife. Didion spoke with Eris about Phares's financial problems, and she told him she was going to help Phares refinance the house. Eris did not tell Didion she intended to make the house her own.

Eris stated that she never heard Phares refer to her as his wife in front of any of the witnesses who testified at trial and that she did not agree to be married to him and did not call him her husband. She presented several witnesses who testified they had met the couple and were not told the two were married. Georgia Charles testified she had...