NUMBER 13-02-420-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DONNA WESTERMAN,
Appellant,
v.
CHARLES RICHARDSON,
Appellee.
On appeal from County Court at Law No. 2 of Victoria County, Texas.
MEMORANDUM OPINION
Before Justice Yañez, Rodriguez and Garza
Opinion by Justice Garza
This suit arises from a contested declaration of heirship for the estate of John Richardson. Appellant, Donna Westerman, is appealing the trial court’s finding that she and Richardson were not married at common law at the time of his death and therefore she was not his surviving spouse and heir. Appellant contends that (1) the trial court erred in failing to properly charge the jury; and (2) the jury finding was so against the great weight and degree of credible evidence as to be manifestly unjust. We overrule both of appellant’s issues and affirm the judgment of the trial court.
Background
In 1996, Donna Westerman and the deceased, John Richardson, began an exclusive intimate relationship. From mid-1996 to Richardson’s death in June 2001, the two saw each other regularly, attended family and social events together, and often spent weekends together at Westerman’s home. They each continued to own their own home and lived separately during the week. They often spoke or saw each other during the week and regularly visited Westerman’s mother as a couple. Richardson made various household repairs and did gardening work around Westerman’s home. She considered him her closest friend and handled all his needs when he became ill.
After being diagnosed with an aggressive form of cancer, Richardson committed suicide in his home in June 2001. Westerman handled the funeral arrangements, purchasing his cemetery lot and headstone.
Following Richardson’s death, Westerman filed a petition for declaratory judgment and for a declaration of heirship. Her petition asked the court to recognize her as Richardson’s wife by common law and to declare her to be his heir, in lieu of his brothers, Charles and Kenneth Richardson. A jury found there was no common-law marriage between Westerman and Richardson, and the judge accordingly declared that Richardson died intestate as a single man, with his brothers as the sole heirs of his estate. Westerman then made her timely appeal to this Court.
Jury Charge
By her first issue, Westerman complains that the trial court erred by failing to properly charge the jury when the judge failed to use her requested charge.
A trial court has considerable discretion when fashioning a jury charge. DeLeon v. Pickens, 933 S.W.2d 286, 290 (Tex. App. – Corpus Christi 1996, writ denied). Thus, the standard of review for jury charges is abuse of discretion. R & R Contractors v. Torres, 88 S.W.3d 685, 696 (Tex. App. – Corpus Christi 2002, no pet.) (citing In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000)). An abuse of discretion occurs when the trial judge acts “without reference to any guiding principles.” DeLeon, 933 S.W.2d at 290 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)).
In considering a challenged jury question, Texas Rule of Civil Procedure 278 specifically states that “(a) judgment shall not be reversed because of the failure to submit other and various phases of different shades of the same jury question.” Tex. R. Civ. P. 278. Further, Texas Rule of Appellate Procedure 44.1(a) requires that no judgment be reversed on appeal due to an error of the trial court unless that error probably led to the rendition of an improper judgment. Tex. R. App. P. 44.1(a). Thus, if this Court decides that the jury instruction failed to adhere to guiding legal principles and was therefore erroneous, the faulty instruction must also have caused the case to be decided differently than it would have been without the instruction. DeLeon, 933 S.W.2d at 290-291 (citing Reinhart & Treme v. Young, 906 S.W.2d 471, 473 (Tex. 1995) (plurality opinion)). Westerman offered jury instructions which contained the definition of an informal marriage drawn from the Texas Family Code, as well as additional information about establishing facts through direct and circumstantial evidence, and a further clarification of the phrase “representing to others.” The trial court denied the requested instructions and instead based the instruction given to the jury entirely on a Texas Pattern Jury Charge for informal marriages, which simply restated the statutory definition from the Texas Family Code: “A man and a woman are married if they agreed to be married and after the agreement they lived together in Texas as husband and wife and there represented to others that they were married.” Tex. Fam. Code Ann. § 2.401 (Vernon 1998); Texas Pattern Jury Charges PJC 201.4A (2002 ed.). The judge included Westerman’s requested definition of circumstantial evidence within the set of general jury instructions and incorporated her request to include a date by posing the question to the jury as: “Were Donna Westerman and John Richardson married on or about June 12, 1996?” The only instruction Westerman requested that was not included was the more detailed definition of “representing to others” and the additional note that such representation can consist of conduct or spoken words.
The trial court clearly based the jury charge on reasonable guidance, using a pattern jury charge that incorporated the statutory definition of informal marriage. See, e.g., Ganesan v. Vallabhaneni, 96 S.W.3d 345, 351 (Tex. App. – Austin 2002, pet. denied) (allowing a jury charge based on the Texas Family Code and Pattern Jury Charge for informal marriage to stand). The inclusion of the additional details that Westerman requested would not have made the question considered by the jury substantially different; rather, the requested charge was merely a “different shade of the same question.” Tex. R. Civ. P. 278. Thus, there was no abuse of discretion by the trial judge. Accordingly, as there was no error, we do not have to consider whether the instruction may have caused the rendition of an improper judgment requiring reversal. Tex. R. App. P. 44.1(a). Westerman’s first issue is overruled.
Factual Sufficiency of Jury Finding
In her second issue on appeal, Westerman argues that the jury finding was so against the great weight and degree of credible evidence as to be manifestly unjust.
To prevail in a factual sufficiency challenge of a jury finding, the appellant must demonstrate that the findings are against the great weight and preponderance of the evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). This Court will consider, weigh and examine all of the evidence supporting and contrary to the finding, and we will overturn the finding only when it is clearly wrong and manifestly unjust. Id.; Hlavinka v. Hancock, 116 S.W.3d 412, 416 - 417 (Tex. App. – Corpus Christi 2003, no pet. h.).
The determination of whether a common-law marriage exists is a question of fact. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993); January v. State, 678 S.W.2d 243, 246 (Tex. App. – Corpus Christi 1984, no writ). In Texas, a common law or informal marriage may be found by proving that a couple: (1) has agreed to be married; (2) thereafter lived together in this state as husband and wife; and (3) there represented to others that they were a married couple. Tex. Fam. Code Ann. § 2.401 (Vernon 1998). These elements may be proved by circumstantial evidence, which can include the acts, statements, or conduct of the parties. Russell, 865 S.W.2d at 933.
The following evidence was presented at trial. It was undisputed that Westerman and Richardson had an exclusive and intimate relationship for five years. They saw each other or spoke on a daily basis, had regular sexual relations, and went to family, professional, and social events together. They were considered by all who knew them to be a couple. Upon Richardson’s death, Westerman handled all the funeral arrangements and expenses, including the purchase of two cemetery lots, one for each of them.
However, according to the testimony at trial, Westerman and Richardson were not considered to be a married couple by anyone who was aware of their relationship, including neighbors, co-workers, and Westerman’s own family members. They maintained separate residences, separate bank accounts, and during each year of their relationship, filed separate tax returns labeling themselves, under penalty of perjury, as single. Westerman’s testimony at trial revealed that she knew the IRS considered common-law marriages valid. In various job-related or medical forms, Richardson listed himself as “single” and referred to Westerman as a “friend” or “other.” Westerman authored a history of her family for a local genealogical society, but she failed to mention her putative marriage to Richardson. Richardson’s obituary described Westerman as Richardson’s “companion,” not “wife.”
After considering all of the evidence in support of and contrary to the finding, we conclude that the jury was reasonable in finding that Westerman and Richardson did not “live together in this state as husband and wife” and “there represent to others that they were married.” It is obvious that this was a close and committed relationship. It is just as obvious, however, that both their conduct within the relationship and their representations to others concerning the relationship indicate that the couple failed to meet the standard of an informal marriage. Therefore, the jury finding was sufficiently supported by the evidence so as to not be unjust or clearly wrong, and Westerman’s second issue on appeal is overruled.
Accordingly, we AFFIRM the judgment of the trial court.
__________________________
DORI CONTRERAS GARZA,
Justice
Opinion delivered and filed
this 22nd day of January, 2004.