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In re B.H.W.

Court of Appeals of Texas, Fifth District, Dallas

June 9, 2017


         On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-56186-2010

          Before Justices Fillmore, Brown, and Richter [1]



         Husband 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.


         Husband 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.

         Wife 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.

         A jury 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.

         Informal Marriage

         In his 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.

         Wife 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.

         A few 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.

         Wife 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.

         After 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 1.

         Wife's 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.

         That 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.

         The 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.

         Under 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.

         Immediately 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.

         Wife 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 ...

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