Saturday, May 3, 2008

Anti-Suit Injunction Upheld on Appeal

Henry v. McMichael (Tex.App.- Houston [1st Dist.] Apr. 24, 2008)(Justice Hanks)
(dominant jurisdiction, temporary injunction appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Panel: Before Justices Taft, Hanks and Higley01-07-00622-CV
Case style: David Henry v. James McMichael and Elizabeth Ann Koehler Co-Independent Executors of The Estate of W.T. McMichael and Catherine McMichael
Appeal from County Court at Law No 1 & Probate Court of Brazoria County
Trial Court Judge: Hon. Jerri Lee Mills

Anti-Suit Injunction

In his second issue, Henry argues that the trial court erred in granting the anti-suit injunction because neither the McMichaels’ application nor the evidence submitted in support of the application established the requisite elements of a temporary injunction under the Texas Rules of Civil Procedure: a probable right to recovery, irreparable harm, and no adequate remedy at law. We disagree.

When a party files suit in a court of competent jurisdiction, that court is entitled to proceed to judgment and may protect its jurisdiction by enjoining the parties from proceeding in a suit subsequently filed in another court of this state. Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001); Gannon, 706 S.W.2d at 305. Further, Texas courts are empowered to enjoin parties from going forward with litigation in another county. See Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex. 1986). Although courts of this state have that power, however, the principle of comity requires that courts exercise this equitable power sparingly and only in very special circumstances. See Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex. 1996); Christensen, 719 S.W.2d at 163.

The Texas Supreme Court has observed that an anti-suit injunction is appropriate to:

(1) address a threat to the court’s jurisdiction,
(2) prevent the evasion of important public policy,
(3) prevent a multiplicity of suits, or
(4) protect a party from vexatious or harassing litigation.

Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 623 (Tex. 2005). The party seeking the injunction must show that “a clear equity demands” the injunction because of one of those four circumstances. Id. Under the third category, a single parallel proceeding in another forum does not constitute a multiplicity of suits and cannot, by itself, justify the issuance of an anti-suit injunction. Golden Rule, 925 S.W.2d at 651–52. Before an anti-suit injunction can properly issue, the requesting party must demonstrate that “very special circumstances” exist such that an injunction is necessary to prevent an “irreparable miscarriage of justice.” See id. at 651.

Henry, relying on the holding in Manufacturers’ Hanover Trust Company v. KingdomInvestors Corporation, 819 S.W.2d 607 (Tex. App.—Houston [1st Dist.] 1991, nowrit), argues that a party seeking an anti-suit injunction is also required under TexasRule of Civil Procedure 680 to establish a probable right of recovery in the underlyinglawsuit, irreparable harm, and that no adequate remedy at law exists. His reliance onthis case for such a requirement is misplaced. Manufacturers Hanover Trust wasdecided before the Texas Supreme Court’s Gonzalez opinion, which does not requirea showing of these elements for an anti-suit injunction issued under the trial court’sequitable powers. See Gonzalez, 159 S.W.3d. at 623.

This case merits an anti-suit injunction for the first reason—the need to protect the Brazoria County court from the threat posed by the Harris County case to its jurisdiction. Because the Brazoria County action was the first filed and there has been no finding of estoppel, the Brazoria County court has dominant jurisdiction over the Harris County court. Thus, as found by the Brazoria County court in its order, if the injunction did not issue, the McMichaels could be irreparably harmed by the pending dispositive motions in the Harris County action. Without the injunction, Henry would proceed with the pending summary judgment hearing and trial on the merits in the Harris County action, thereby depriving the Brazoria County court of its jurisdiction to hear the case and depriving the McMichaels of their choice of forum without an effective remedy for this error. See Gonzalez, 159 S.W.3d. at 623.

Likewise, clear equity justifies an anti-suit injunction in this case. The fact that the McMicheals have correctly argued and established that the Harris County court does not have dominant jurisdiction and has not brought about a stay or abatement of the Harris County action. That action remains pending, and, absent an injunction, Henry could continue to pursue both state court actions, only one of which has dominant jurisdiction, requiring the McMichaels to defend both actions and pursue appeals in both, if necessary. To allow the Harris County action to proceed under these circumstances would be contrary to the longstanding public “policy of the courts and the legislature of this state to avoid a multiplicity of lawsuits.” See id.

Accordingly, we hold that the trial court did not err in granting the McMichaels’ temporary injunction, and we overrule issue two.

Plenary Power Had Expired - Order Reinstating Case Thus Void

Court of appeals grant mandamus relief to enforce rule that trial court cannot act after its plenary power is gone. Amended motion for new trial does not extend the trial court's jurisdiction beyond the expiration date to reopen the case.

In re Valdes (Tex.App.- Houston [1st Dist.] Apr. 24, 2008)(Keyes)(motion for reconsideration of motion for new trial, plenary power expired, order void)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice KeyesBefore Justices Taft, Keyes and Alcala
01-08-00165-CV In re Fernando F. ValdesAppeal from 122nd District Court of Galveston CountyTrial Court Judge: Hon. John Ellisor

By petition for writ of mandamus, relator, Fernando F. Valdes challenges the trial court’s January 26, 2007 order granting a new trial. In his sole issue, Valdes contends that the trial court abused its discretion by granting real party in interest, Alan Battaglini’s, motion for reconsideration of Battaglini’s motion for new trial after expiration of its plenary power. We grant mandamus relief.

Background

In the underlying suit, Valdes sued Battaglini for injuries sustained in a fist fight. On October 10, 2006, the trial court granted Valdes a default judgment. Battaglini filed a motion for new trial on October 13, 2006, which the court denied on November 9, 2006. On December 7, 2006, Battaglini filed a motion to reconsider the court’s denial of his motion for new trial. The court granted the motion to reconsider on January 26, 2007. Valdes seeks mandamus relief compelling the trial court to vacate its January 26, 2007 order granting the motion to reconsider.2

Standard of Review

Mandamus is an extraordinary remedy available only when (1) a trial court clearly abuses its discretion and (2) there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004); In re Supportkids, Inc., 124 S.W.3d 804, 807 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). With respect to a trial court’s determination of legal principles, “a trial court has no ‘discretion’ in determining what the law is or applying the law to facts.” In re Prudential, 148 S.W.3d at 135 (quoting Walker, 827 S.W.2d at 840). Thus, a trial court’s failure to analyze or apply the law correctly will constitute an abuse of discretion and may result in a reversal by extraordinary writ. Walker, 827 S.W.2d at 840. Mandamus relief is proper when a trial court signs an order for new trial after it has lost plenary power. In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998).


Discussion

The trial court has plenary power to grant a new trial within 30 days after the judgment is signed. See Tex. R. Civ. P. 329b(d). The filing of a motion for new trial extends the trial court’s plenary power over the judgment. Lane Bank Equip. Co. v. Smith. S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). If the motion is denied, plenary power is extended until 30 days after the motion is denied. Tex. R. Civ. P. 329b(e). An amended motion for new trial does not extend plenary power. Dickason, 987 S.W.2d at 571.


Here, the trial court denied the motion for new trial on November 9, 2006. The court’s plenary power expired 30 days later on December 9, 2006. See Tex. R. Civ. P. 329b(e). However, the court granted Battaglini’s motion for reconsideration of defendant’s motion for new trial on January 26, 2007. Battaglini implies that his motion for reconsideration is an amended motion for new trial. Unlike a motion for new trial, an amended motion for new trial does not extend plenary power. Dickason, 987 S.W.2d at 571. Therefore, the trial court lacked plenary power when it signed the motion to reconsider on January 26, 2007. Because the trial court granted the motion for reconsideration after it had lost plenary power, the order is void. Id.

Conclusion

We hold that the trial court abused its discretion by granting Battaglini’s motion for reconsideration of his motion for new trial. We conditionally grant the writ of mandamus and order the trial court to vacate its January 26, 2007 “Order on Defendant’s Motion for Reconsideration of Defendants Motion for New Trial.” We are confident that the trial court will promptly comply, and our writ will issue only if it does not.

Evelyn V. Keyes,
Justice

Panel consists of Justices Taft, Keyes, and Alcala.

1 The underlying suit is Fernando F. Valdes v. Alan W. Battaglini, No. 05-CV-1096 in the 122nd District Court of Galveston County, Texas, the Hon. John Ellisor presiding.
2 Valdes also sought emergency relief to stay proceedings pending resolution of the mandamus. On March 10, 2008, we granted emergency relief.

County Court had jurisdiction over appeal from JP court after all

Not every motion for reconsideration is in vain. Error here corrected on motion for rehearing, based on additional documents showing that requirements for appeal were satisfied.

Salmeron v. T-Mobile West Corp. (Tex.App.- Houston [1st Dist.] Apr. 24, 2008)(Subst. op. by Jennings) (county court's dismissal of appeal from JP court was error, appeal bond was timely after all as shown by supplemental record)REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice JenningsBefore Chief Justice Radack, Justices Jennings and Bland01-07-00532-CV Stella Salmeron v. T-Mobile West Corporation
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Jacqueline Lucci Smith

MEMORANDUM OPINION ON REHEARING

We grant appellant's motion for rehearing. See Tex. R. App. P. 49.3. We withdraw our January 24, 2008 opinion, substitute this opinion in its place, and vacate our January 24, 2008 judgment.
Appellant, Stella Salmeron, challenges the county civil court at law's order dismissing her appeal of a justice of the peace court judgment in favor of appellee, T-Mobile West Corporation ("T-Mobile"). In her sole issue, Salmeron contends that the county civil court at law erred in dismissing her appeal for lack of jurisdiction.
We reverse the order of the county civil court at law dismissing the case for lack of jurisdiction, and we remand for proceedings consistent with this opinion.
Procedural Background
Salmeron, seeking to recover $1,300 in damages, sued T-Mobile. After a trial, the justice of the peace court signed its April 2, 2007 judgment, in which it ordered that Salmeron take nothing and awarded T-Mobile $1,713, plus court costs and interest. On April 10, 2007, (1) Salmeron, seeking to appeal the justice of the peace court's judgment to the county civil court at law, filed an appeal bond.
On April 25, 2007, T-Mobile, in the county civil court at law, moved to dismiss Salmeron's appeal on the ground that Salmeron had not timely filed her appeal bond. (2) The county civil court at law, concluding that it lacked jurisdiction over the appeal, granted T-Mobile's motion.
Jurisdiction
In her sole issue, Salmeron argues that the county civil court at law erred in dismissing her appeal for lack of jurisdiction because it "failed to follow the statutory interpretation requirements for allowing [an] appeal under the Texas Rules of Civil Procedure."
Whether a party timely files an appeal bond in order to confer jurisdiction in a county civil court at law presents a legal question, which we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). To perfect such an appeal, a party has ten days from "the date a judgment or order overruling [a] motion for new trial is signed" to file an appeal bond with the justice of the peace court. Tex. R. Civ. P. 571. If the appeal bond is not timely filed, the county civil court at law is without jurisdiction to hear the appeal. Williams v. Schneiber, 148 S.W.3d 581, 583 (Tex. App.--Fort Worth 2004, no pet.); Searcy v. Sagullo, 915 S.W.2d 595, 597 (Tex. App.--Houston [14th Dist.] 1996, no writ); Meyers v. Belford, 550 S.W.2d 359, 359-60 (Tex. Civ. App.--El Paso 1977, no writ).
Here, Salmeron filed her appeal bond eight days after the justice of the peace court signed its judgment. Accordingly, we hold that the county civil court at law erred in dismissing Salmeron's appeal for lack of jurisdiction.
We sustain Salmeron's sole issue. (3)
Conclusion
We reverse the order of the county civil court at law (4) dismissing the case for
lack of jurisdiction, and we remand for further proceedings consistent with this opinion.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
1. In our original opinion issued on January 24, 2008, we concluded that Salmeron had untimely filed an appeal bond on April 16, 2007. However, on February 4, 2008, Salmeron filed a motion for rehearing, attaching an exhibit as proof that she had timely filed her appeal bond. See Tex. R. App. P. 49.1. The exhibit, file stamped on April 10, 2007, was marked as "received" by Judge "W.V. Yeoman," the presiding justice of the peace over Salmeron and T-Mobile's trial. This exhibit was not included in the original clerk's record. On February 19, 2008 and February 22, 2008, we ordered the county civil court at law to supplement the clerk's record. See Tex. R. App. P. 34.5(c)(1). On February 22, 2008 and March 7, 2008, the county civil court at law supplemented the clerk's record. Our review of the supplemental clerk's records reveals that Salmeron did, in fact, file her appeal bond with the justice of the peace court on April 10, 2007.
2. See Tex. R. Civ. P. 571. Also, Salmeron did not file a motion for new trial.
3. Salmeron also asserts that the court clerks and the county civil court at law violated her due process rights by not providing her with an interpreter. See Tex. R. Civ. P. 183. When an intermediate appeals court dismisses a case without ruling on the merits, a higher appeals court may only affirm or reverse (and remand) the intermediate appeals court's judgment of dismissal, i.e., it may not address the case's merits. See Tex. Dep't of Pub. Safety v. Barlow, 48 S.W.3d 174, 176 (Tex. 2001) (remanding case to court of appeals to consider merits after court of appeals erred in determining that it lacked jurisdiction); Brooks v. Jones, 578 S.W.2d 669, 674 (Tex. 1979) (noting that, "when a court of civil appeals has dismissed a case and has not ruled upon its merits, we will remand the cause to that court for consideration"); Mitchell v. Armstrong Capital Corp., 877 S.W.2d 480, 482 (Tex. App.--Houston [1st Dist.] 1994, no writ) (concluding that court need not address other points of error after determining that county civil court at law erred in dismissing case for lack of jurisdiction). Thus, having held that the county civil court at law erred in dismissing Salmeron's appeal for lack of jurisdiction, we do not consider Salmeron's assertion that the court clerks and county civil court at law violated her due process rights by not providing her with an interpreter.
4. See Villalon v. Bank One, 176 S.W.3d 66, 69-70 (Tex. App.--Houston [1st Dist.] 2004, pet. denied) (noting that perfection of appeal from justice of peace court to county court for trial de novo vacates and annuls judgment of justice of peace court and, therefore, county court cannot affirm or reverse judgment of justice of peace court, nor can it remand cause to justice of peace court).

The Elements of Common Law Marriage: What makes an informal marriage valid in Texas?

The court of appeals in this cases addresses a subject of much confusion and uncertainty among the affected public, the elements of common law marriage (informal marriage) in Texas, and the facts supporting them.

Quinn v. Milanizadeh (Tex.App.- Houston [1st Dist.] Apr. 24, 2008) (Higley)(divorce, separate property, common law marriage, waiver of objection to associate judge)
AFFIRM TC JUDGMENT: Opinion by Justice HigleyBefore Justices Nuchia, Hanks and Higley 01-07-00489-CV Tyrone Michael Quinn v. Shaleh Rene MilanizadehAppeal from 308th District Court of Harris CountyTrial Court Judge: Hon. Georgia Dempster

MEMORANDUM OPINION

This appeal arises from the divorce proceeding between appellant, Tyrone Michael Quinn, and appellee, Shaleh Rene Milanizadeh. Quinn challenges the trial court’s “Final Decree of Divorce” in four issues by contending that (1) the case should have been tried by the referring judge, rather than the associate judge; (2) the decree did not conform to Milanizadeh’s pleading; (3) the evidence did not show that a common-law marriage existed between Quinn and Milanizadeh; and (4) certain real property in which Quinn had a separate property interest was mischaracterized as wholly community property.
We affirm.
Background
In June 1998, Quinn and Milanizadeh began dating. One year later, Milanizadeh moved to Atlanta to live with Quinn, who had taken a job there. In 2000, the couple separated and Milanizadeh moved back to Houston. Two weeks after she returned to Houston, Milanizadeh discovered that she was pregnant. After learning of the pregnancy, Quinn moved back to Houston. The couple’s daughter, S.Q., was born on June 30, 2001.
Quinn and Milanizadeh purchased a home together in October 2001. Quinn resided in the home with Milanizadeh and his daughter. In April 2004, Quinn began working in Kuwait. Originally, Quinn had signed a one-year contract to work overseas, but then signed another contract and stayed a second year in Kuwait. During that time, when Quinn returned on vacation, he would stay with Milanizadeh at their home. In August 2005, while working in Kuwait, Quinn purchased a high-rise condominium unit in Dubai for investment purposes .
After finishing his work in Kuwait, Quinn returned home in June 2006 to live with Milanizadeh. After learning that Quinn had engaged in infidelities, Milanizadeh filed for divorce on August 31, 2006. At that time, Quinn still resided with Milanizadeh.
The case was referred to and tried by an associate judge. With respect to S.Q., the parties agreed that Quinn and Milanizadeh should be named joint managing conservators with standard possession rights and that Milanizadeh would establish S.Q.’s primary residence.
The issues tried to the associate judge were whether a common-law marriage existed between Quinn and Milanizadeh and, if so, the proper division of the marital estate. During trial, the associate judge first found that a marriage existed between Quinn and Milanizadeh. Trial then proceeded with respect to division of the marital estate.
Three weeks after trial, the associate judge sent the parties his written recommendations with respect to the marital estate. The associate judge made the following pertinent awards: (1) Milanizadeh was awarded the couple’s home and the balances in all bank and savings accounts and (2) Quinn was awarded the condominium in Dubai.
Neither party requested a de novo review by the referring judge, and the referring judge signed a “Final Decree of Divorce” incorporating the associate judge’s recommendations. Quinn now appeals the decree.
Challenge to Associate Judge Hearing Case
In his first issue, Quinn contends, “The trial [referring] court erred by allowing the case to be heard by an associate judge after a written objection was filed in Quinn’s original answer.”
Family Code section 201.005 permits a presiding district court judge to refer certain family law matters to an associate judge. Tex. Fam. Code Ann. § 201.005 (Vernon 2002). That section further provides that if one of the parties files an objection to the associate judge presiding over trial, then the case shall be tried by the referring judge rather than the associate judge. Id.
Here, in his original answer to Milanizadeh’s petition, Quinn filed a written objection to an associate judge trying the case. Quinn claims on appeal that he never waived his right to object to the associate judge trying the case. The record indicates to the contrary. The record reflects that Quinn expressly waived his right to object to trial before an associate judge. Specifically, Quinn and Milanizadeh, and each party’s attorney, signed a Rule 11 agreement waiving any objections to the associate judge hearing the case on the merits.
We overrule Quinn’s first issue.
Decree Conforming with Pleadings
In his second issue, Quinn asserts, “The trial court committed error in making an inequitable division of the community estate when the trial court’s judgment failed to conform to Milanizadeh’s pleadings.”
In her petition, Milanizadeh pled insupportability as the ground for divorce. See Tex. Fam. Ann. § 6.001 (Vernon 2006) (defining “insupportability”). Quinn correctly states that a judgment must conform with the pleadings. Tex .R. Civ. P. 301. Here, the decree states that “the marriage between Quinn and Milanizadeh is dissolved on the ground of insupportability.” Thus, as pointed out by Milanizadeh, the judgment does conform with Milanizadeh’s pleading.
We overrule Quinn’s second issue.
Common-Law Marriage
In his third issue, appellant contends, “The trial court committed an abuse of discretion when it concluded a common-law marriage existed between the parties.” Fairly considering his appellate arguments, we construe Quinn’s third issue to be a challenge to the legal and factual sufficiency of the evidence to support the finding that a common-law marriage existed between Quinn and Milanizadeh.
A. Standards of Review
In conducting a legal sufficiency review, we consider “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We “credit favorable evidence if [a] reasonable [fact-finder] could, and disregard contrary evidence unless [a] reasonable [fact-finder] could not.” Id. If the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder, which alone determines the credibility of the witnesses and the weight, if any, to be given their testimony. Id. at 819, 822.
We review the evidence in the light most favorable to the verdict and indulge every reasonable inference that supports it. Id. at 822. Nonetheless, we may not disregard evidence that allows only one inference. Id. We will sustain a legal sufficiency challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810.
In contrast, when conducting a factual-sufficiency review, we consider all the evidence in the record, both supporting and conflicting, and set aside the verdict only if it is so contrary to the overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Plas-Tex Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In an appeal from a bench trial, we do not invade the fact-finding role of the trial court, which alone determines the credibility of the witnesses, the weight to give their testimony, and whether to accept or reject all or any part of that testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580–81 (Tex. App.—Houston [1st Dist.] 1997, pet. denied).
B. Common-Law Marriage: The Basic Principles
It is undisputed that no ceremonial marriage occurred between Quinn and Milanizadeh. Rather, the question presented at trial was whether they were married by virtue of an informal, or as known colloquially, a “common-law marriage.” By finding that Quinn and Milanizadeh were married, the associate judge implicitly found that Quinn and Milanizadeh had entered into a common-law marriage.
In Texas, common-law marriage can be established by showing that the parties (1) agreed to be married; (2) cohabitated in Texas as husband and wife; and (3) represented to others that they were married. Tex. Fam. Code Ann. § 2.401(a)(2) (Vernon 2006); Russell v. Russell, 865 S.W.2d 929, 932 (Tex. 1993); Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). As the proponent of the marriage, Milanizadeh had the burden of proof on these elements. Lewis v. Anderson, 173 S.W.3d 556, 559 (Tex. App.—Dallas 2005, pet. denied); Jenkins v. Jenkins, 16 S.W.3d 473, 480 (Tex. App.—El Paso 2000, no pet.). The existence of a common-law marriage is a question of fact to be resolved by the fact-finder. Jenkins, 16 S.W.3d at 480.
C. Analysis
1. Agreement to be Married
Quinn first challenges the associate judge’s implied finding that he and Milanizadeh had an agreement to be married.
To establish an agreement to be married, “the evidence must show the parties intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris, 39 S.W.3d at 714. The agreement to be married may be established by direct or circumstantial evidence. Russell, 865 S.W.2d at 933. The testimony of one of the parties to the marriage constitutes direct evidence that the parties agreed to be married. See Eris, 39 S.W.3d at 714 (citing Collora v. Navarro, 574 S.W.2d 65, 70 (Tex. 1978)); In re Estate of Giessel, 734 S.W.2d 27, 32 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.)). The conduct of the parties, evidence of cohabitation, and representations to others may constitute circumstantial evidence of an agreement, depending on the facts of the case. See Russell, 865 S.W.2d at 933; Eris, 39 S.W.3d at 714.
At trial, Milanizadeh presented direct and circumstantial evidence supporting her claim that the parties agreed to be married.
Milanizadeh first testified that when she moved from Houston to Atlanta in June 1999 to live with Quinn, she and Quinn agreed that they were married. She testified that when she first arrived in Atlanta, Quinn said, “Hello, Mrs. Quinn.”
Milanizadeh also presented evidence that the agreement to be married continued once the couple returned to Texas. The evidence showed that Quinn and Milanizadeh purchased a home together in October 2001 with a “VA loan.” Milanizadeh testified that she was identified in the VA loan papers as Quinn’s wife. The evidence further showed that the couple lived together in the home they purchased together. Quinn does not dispute that he resided with Milanizadeh in the home until April 2004, when he went to work in Kuwait. Milanizadeh testified that when Quinn came back to Houston on vacation while he worked overseas, he would stay at the home they purchased together. After his employment in Kuwait ended in June 2006, Quinn returned to Houston and again lived with Milanizadeh in the home they had purchased together. In July 2006, the couple went on a vacation together to Aruba and purchased a time share there together. Quinn testified that when he accepted a another job in Kuwait in the summer of 2006, he asked Milanizadeh to move there with him; however, Milanizadeh declined because she was in school to earn her master’s degree.
Milanizadeh and Quinn both testified that Quinn had Milanizadeh on his health insurance plan for two years.
Milanizadeh also testified that Quinn’s family referred to her as their daughter-in-law and her family referred to Quinn as their son-in-law. A friend of Milanizadeh, who testified at trial, stated that she thought Quinn and Milanizadeh were married. Quinn claims such evidence is insufficient to show an agreement because it is contradicted by other evidence in the record, most prominently his own testimony that he did not agree he and Milanizadeh were married. Quinn points out that Milanizadeh testified that she and Quinn had essentially ended their relationship in 2000 when she left Atlanta to return to Houston. But, Milanizadeh also testified that, after she found out she was pregnant, Quinn moved to Houston, and the two bought a home together, indicating a reconciliation.
Quinn also cites the testimony of Milanizadeh’s friend, who testified, although she heard Milanizadeh refer to Quinn as her husband, she never heard Quinn refer to Milanizadeh as his wife. Nonetheless, as mentioned above, the friend testified that she thought that Quinn and Milanizadeh were married.
In addition, Quinn points to a document, entitled “Contract Agreement,” that he and Milanizadeh signed with respect to the purchase of their home. The document provided that, if after five years, either Quinn or Milanizadeh wished to sell the home, the other party must either agree to the sale of the home or must buy 50 per cent of the equity accrued in the home to the other party. The document also provided, “Common law marriage should not be taken in consideration with respect to this document.”
Regarding the Contract Agreement, Milanizadeh testified that, though the document states that the parties were not signing under duress, she felt pressured by Quinn to sign it. She testified that Quinn asked her to sign the document on the day they were scheduled to close on the house. Milanizadeh stated that her daughter was only three months old, and they had already given notice on the apartment in which they had been living. She feared that if she did not sign the document, the closing would not take place, and they would have no place to live.
Quinn further points out that he and Milanizadeh had separate bank accounts and that he and Milanizadeh filed separate tax returns, filing as single persons. Milanizadeh testified that she and Quinn filed in this manner because it was more economically advantageous to them.
Quinn also asserts that Milanizadeh’s claim that the couple had an agreement to be married is undermined by her own testimony that she knew that Quinn was “dating” other women. Despite Quinn’s characterization, Milanizadeh testified that she learned that Quinn was engaging in infidelities, not that he was “dating” other women.
Quinn further cites evidence that, when the Dubai condominium was purchased, he purchased it alone. In contrast, Milanizadeh testified that Quinn used funds belonging to the marital estate to purchase the property. According to Milanizadeh, the two had discussed the purchase, and Quinn had told her that the purchase was an investment.
In sum, the evidence referenced by Quinn goes to the weight afforded the evidence and does not serve to negate a common-law marriage. See Giessel, 734 S.W.2d at 31 (concluding that “wife’s” denial of marriage in tax returns, social security, driver’s license, bank, and pay records did not negate existence of common-law marriage, but went to weight of evidence). Thus, any conflicts in the evidence did not preclude an implicit finding that Quinn and Milanizadeh had agreed that they were married; rather the conflicts go to the weight of the evidence and were for the fact-finder to resolve. See id.
Lastly, Quinn contends that, because he ceased living with Milanizadeh on April 21, 2004 when he moved to Kuwait for work, Family Code section 2.401(b) operates to create a rebuttable presumption that there was no agreement between the couple that they were married. Section 2.401(b) provides that if the proponent of the marriage does not commence a proceeding to prove the marriage under Family Code section 2.401(a)(2) within two years of the date on which the parties to the alleged marriage separated and ceased living together, then there is a rebuttable presumption that the parties did not enter into an agreement to be married. Tex. Fam. Code Ann. § 2.401(b). The undisputed record reveals that, after he returned from Kuwait in June 2006, Quinn lived with Milanizadeh for at least two months before she filed for divorce on August 31, 2006. Thus, the rebuttable presumption contemplated in section 2.401(b) has no application in this case.
2. Cohabitation
Quinn next challenges the cohabitation element. He contends that he and Milanizadeh stopped living together on April 21, 2004, when he moved to Kuwait for a new job. As mentioned, Milanizadeh testified that, when he returned to Houston on vacation, Quinn stayed with her in the home that they had purchased together.
The evidence also showed that, when Quinn finished his job in Kuwait in June 2006, he moved back to the home he purchased with Milanizadeh. She did not file for divorce until the end of August 2006. Contrary to Quinn’s position, this and other courts have held that evidence of similar living arrangements was sufficient to support a finding of cohabitation. See Winfield v. Renfro, 821 S.W.2d 640, 646–48 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (concluding evidence of cohabitation sufficient when man only spent about 100 days with woman in two years); see also Ballesteros v. Jones, 985 S.W.2d 485, 491 (Tex. App.—San Antonio 1998, writ denied) (concluding that evidence sufficient to establish cohabitation element between man, a Mexican national whose permanent residence was in Nuevo Laredo, and woman, even though man split time between homes); Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App.—San Antonio 1987, no writ) (holding that evidence that man, employed in Nigeria, stayed at woman’s residence during his periodic visits to Texas was sufficient to support finding that they lived together as husband and wife “to the extent possible under the circumstances”).
3. Holding Out to Others
Quinn urges that the evidence is legally and factually insufficient to support the implied finding that he and Milanizadeh held themselves out to the public as being married.
To satisfy this element of common-law marriage, parties must have represented to others that they were married. The requirement of “represented to others” is synonymous with the judicial requirement of “holding out to the public.” Winfield, 821 S.W.2d at 648; Giessel, 734 S.W.2d at 30. It is well settled that “holding out” may be established by conduct and actions of the parties. Winfield, 821 S.W.2d at 648; Giessel, 734 S.W.2d at 31. Spoken words are not necessary to establish representation as husband and wife. Winfield, 821 S.W.2d at 648.
In this regard, as mentioned, evidence was presented that Quinn and Milanizadeh signed the VA loan to purchase their home as husband and wife. The evidence also showed that Quinn covered Milanizadeh on his health insurance for two years.
Milanizadeh testified that she heard Quinn refer to her as his wife to their friends and families. Milanizadeh’s friend also testified that she thought that the couple was married. The friend heard Milanizadeh refer to Quinn as her husband and never heard Quinn deny that he was married to Milanizadeh. Testimony was also presented that the couple’s families considered Quinn and Milanizadeh to be married. The evidence also showed that Quinn and Milanizadeh purchased a time share in Aruba together in July 2006.
Quinn contends that the equal inference rule prevents an inference of a holding out of marriage. As noted by Quinn, the equal inference rule applies in weak circumstantial evidence cases where the jurors would have to guess whether a vital fact exists. Lewis, 173 S.W.3d at 562 (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)). Quinn contends, “[T]he equal inference rule should apply to this case because of the weak circumstantial evidence adduced at trial of holding out to others as married.” We disagree.
We conclude the equal inference rule does not apply because there was direct evidence of the holding out of a marriage between Quinn and Milanizadeh. See id. (concluding equal inference rule does not apply to direct evidence that couple had represented to others that they were married). Specifically, evidence was presented that Quinn and Milanizadeh held themselves out as being married when obtaining a VA loan. Milanizadeh also testified that Quinn referred to her publically as his wife.
Applying the appropriate standards of review, we hold that the evidence was legally and factually sufficient to support a finding that a common-law marriage existed between Quinn and Milanizadeh.
We overrule Quinn’s third issue.
Characterization of Property
In his fourth issue, Quinn contends that the trial court erred by characterizing the Dubai condominium “as wholly community property.” Quinn asserts that the property was purchased, in part, with funds that were his separate, pre-marital property. Quinn presents this issue as a challenge to the legal and factual sufficiency of the evidence.
The Family Code requires that the trial court divide the marital estate of the parties in a manner that is just and right, having due regard for the rights of each party. Tex. Fam. Code Ann. § 7.001 (Vernon 2006). The trial court has broad discretion in dividing the marital estate at divorce. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). In our review, we will reverse the cause only where the trial court abused that discretion. See id. Under this abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are merely relevant factors in assessing whether the trial court abused its discretion. Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.—Houston [14th Dist.] 1996, no writ).
All property on hand at the dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (Vernon 2006). It is a rebuttable presumption requiring a spouse claiming assets as separate property to establish its separate character by clear and convincing evidence. Id. § 3.003(b).
At trial, Quinn testified that part of the funds used for the $75,000 purchase price of the Dubai condominium came from a pre-marital retirement account. In contrast, Milanizadeh testified that the entire purchase price was paid with money earned during the marriage. No other evidence was presented regarding the source of the funds used to pay for the property.
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We note that the associate judge limited the evidence that Quinn introduced regardingthe separate nature of the funds used to purchase the property on the basis that Quinnhad failed to plead separate property. Quinn has made no challenge to this ruling.Close
As fact finder, the associate judge was permitted to believe the testimony of Milanizadeh and to disbelieve that of Quinn. We hold that no abuse of discretion has been shown with regard to the characterization of the Dubai condominium as community property.
We overrule Quinn’s fourth issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.

Juvenile's conviction thrown out - Plea was not truly voluntary in light of misinformation

Both the Defendant and the Trial Court in Apparent Need of Correction and Proper Admonishment

In the Matter of T.W.C., Jr. (Tex.App.- Houston [1st Dist.] Apr. 24, 2008) (Radack) (juvenile, erroneous admonishment)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Chief Justice RadackBefore Chief Justice Radack, Justices Jennings and Bland
01-06-01150-CV In The Matter of T.W.C., Jr.Appeal from County Court at Law No 2 & Probate Court of Brazoria County Trial Court Judge: Hon. Mark Holder

Based on the record before us, we hold that, like the defendant in Smith, appellant has met his burden of showing that he was misled by the trial court's admonishment that he faced 40 years' punishment and that, but for his misunderstanding as to the true range of punishment, he would not have entered a guilty plea. Accordingly, we sustain appellant's second issue on appeal. In light of our disposition, we need not decide whether appellant also received ineffective assistance of counsel, and we decline to do so.

Conclusion

We reverse the judgment of the trial court and remand the cause for further proceedings.

Judge Cagle's indiosyncrasies subject of non-recusal appeal



[This post has been removed - upon reconsideration - upon a polite request by Judge Cagle]