Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 219th Judicial District Court Collin County,
Texas Trial Court Cause No. 219-56186-2010
Justices Fillmore, Brown, and Richter 
appeals a final decree of divorce. In five issues, Husband
contends (1) the evidence is legally and factually
insufficient to support the jury's finding of informal
marriage, (2) the trial court abused its discretion in
admitting hearsay, (3) an "Agreement in Contemplation of
Marriage" was enforceable as a post-marital agreement,
(4) the trial court abused its discretion in failing to award
Husband reimbursement for separate funds he expended on the
marital residence, and (5) the trial court abused its
discretion in enjoining him from having female guests in his
home after 10:00 p.m. For the following reasons, we affirm
the final decree.
and Wife were married in 2003. During the marriage, Wife gave
birth to triplets. In 2010, Husband filed for divorce.
Husband asserted the parties were married during a wedding
ceremony on August 1, 2003, and requested the trial court to
enforce the provisions of a July 23, 2003 "Agreement in
Contemplation of Marriage" ("Agreement").
Under the terms of that agreement, no community property
would be created during their marriage. Husband also asserted
it would not be in their children's best interests for
him and Wife to be appointed joint managing conservators of
the children and requested the trial court to appoint him as
their sole managing conservator.
filed a counter-petition for divorce asserting the Agreement
was executed after the parties were informally married. Thus,
the Agreement was not a premarital agreement and did not
prevent the creation of a community estate. Wife agreed it
would not be in the best interests of the children for her
and Husband to be appointed joint managing conservators, but
requested she be appointed their sole managing conservator.
trial was held to determine the date of the parties'
marriage. The jury found in Wife's favor and specifically
that the parties were informally married on July 1, 2003. A
trial before the court followed with respect to property
division and conservatorship of the children. The trial court
awarded Husband all of the property he had prior to the
marriage and almost all of the property the parties acquired
during the marriage, including the marital residence. To
equalize the division, the trial court awarded Wife a
judgment for $541, 000. In its findings of fact and
conclusions of law, the trial court found the marital
residence was community property and had a net value of
approximately $1, 210, 000. The trial court appointed Husband
sole managing conservator of the children and Wife possessory
conservator. The trial court also permanently enjoined the
parties from having "unrelated members of the opposite
sex in the same abode between the hours of 10:00 p.m. and
7:00 a.m." during their respective periods of
possession. Husband appeals.
first issue, Husband asserts the evidence to support the
jury's finding of informal marriage was legally and
factually insufficient. At the jury trial, Wife presented
evidence that she met Husband in February 2003 through an
online dating service. At that time, Wife lived in Texarkana,
Texas and was a registered nurse, working "a four days
on, four days off" schedule. Husband was a business
owner, living and working in Dallas.
testified the relationship quickly became serious and, on
June 8, 2003, after attending church together in Dallas, she
and Husband agreed to be married and began living together as
husband and wife. She said, that afternoon, they started
looking for houses together.
weeks later, on June 30, Wife discovered she was pregnant.
She said she and Husband were both happy. A few days later,
over the Fourth of July holiday, she said they announced the
news to Husband's family, celebrating with a bottle of
champagne. Wife acknowledged they did not expressly tell
Husband's family they were married, but in her mind that
was a "given" because they were living together and
excited to be having a baby.
testified that although she was living in Dallas, she still
had not quit her job in Texarkana because she was taking a
large amount of paid time off she had accrued. In mid-July,
Wife returned to Texarkana to work her last four days and
move out of the house she had been renting. Before she did
so, Husband gave Wife both an engagement ring and a wedding
band so everyone would know she was "taken." On
July 19, Husband went to Texarkana to help Wife move.
they returned to Dallas, on July 21, Wife testified she and
Husband attended her first prenatal appointment. Wife
testified that sometime before that appointment, Husband gave
her a health insurance card and told her he had added her to
his policy as his spouse. She had the card at the time of the
July appointment. Wife also testified she was insured under
her married name and the insurance was effective as of July
medical records from the July 21 appointment were admitted
into evidence. They show Wife was using Husband's surname
at that time, they mark her marital status as "married,
" and they specifically identify Husband as her spouse.
According to Wife, she and Husband provided that information
to the intake nurse together.
same night, Wife testified, Husband came home from work and,
for the first time, mentioned a "prenuptial"
agreement. Wife said she was concerned, but Husband told her
the agreement was to reassure some employees and he would
make it "go away" later. Two days later, on the
morning of July 23, Husband took Wife to his lawyer's
office to sign the Agreement. According to Wife, that was the
first time she saw the Agreement and she signed it without
being given the opportunity to read it.
Agreement contained a "stipulation" stating that
"Husband and Wife, who are not now married, intend to
become husband and wife by ceremony to be performed on
August 1, 2003 at Lake Tahoe, NV/CA."
The words in italics were in handwriting. Wife said there was
nothing in the lines when she signed and identified the
handwriting as Husband's.
the terms of the Agreement, no community property would be
created as a result of the marriage. The Agreement also had
schedules attached listing Husband's and Wife's
respective separate property. Husband's checking account
at Frost Bank was listed on his schedule.
after they signed the agreement, Husband took Wife to Frost
Bank to add her to that checking account. At that time, he
affirmatively represented to the bank that Wife was his
spouse. In addition, Husband and Wife also executed a
"Community Property with Right of Survivorship
Agreement." It states, "We, as husband and wife and
parties to the Account, hereby agree that the community
property funds in the above mentioned-account shall vest and
become the property of the surviving spouse upon the death of
the other spouse . . . ." Wife used Husband's
surname when she signed that agreement and the signature card
for the checking account.
testified that night, Husband planned a trip to Lake Tahoe
for an August 1 wedding ceremony. Wife testified that during
their marriage, she and Husband celebrated ...