Omodele, Boluwaji v. Adams, Mopelola

Affirmed in part and Reversed and Remanded in part and Opinion filed January 16, 2003 Affirmed in part and Reversed and Remanded in part and Opinion filed January 16, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-01-00999-CV ____________ BOLUWAJI OMODELE, Appellant V. MOPELOLA ADAMS, Appellee On Appeal from the 245th District Court Harris County, Texas Trial Court Cause No. 00 44484 M E M O R A N D U M   O P I N I O N Appellant, Boluwaji Omodele, appeals the trial court=s judgment granting a divorce to appellee, Mopelola Adams, and ordering appellant to pay monthly child-support payments. In three points of error, appellant claims the trial court erred in (1) finding a common-law marriage existed; (2) ordering appellant to pay child support in the amount of $1000 a month; and (3) denying appellant=s motion for continuance. We affirm in part and reverse and remand in part. I. Background Mopelola Adams sued for a divorce from an alleged common-law marriage to Boluwaji Omodele. Adams claimed in her Amended Petition for Divorce that the parties were married on or about September 14, 1999, and ceased to live together as husband and wife on or about April 9, 2000. The parties= relationship spanned approximately twelve years, during which they had three children together: Seye Omodele, Mariam Omodele, and Victoria Omodele. During this time Omodele was married and divorced from at least two other women. His last marriage, to Rashidat A. Balogun, terminated pursuant to a divorce decree on December 22, 1999, and took effect 30 days later on January 21, 2000. In September 1999, Adams and Omodele purchased a home together in which they lived for the duration of their relationship. The parties signed both a deed and title insurance for the property as husband and wife referencing the residence as community property. II. Common-Law Marriage A. Standard of Review In his first point of error, Omodele attacks the legal and factual sufficiency of the evidence admitted to establish the three elements of a common-law marriage. When, as here, no findings of fact or conclusions of law are requested or filed, we imply all necessary findings in support of the trial court=s judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). However, because a reporter=s record has been provided, the implied findings may be challenged for legal and factual insufficiency the same as jury findings or a trial court=s findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). We must affirm the judgment on any theory of law that finds support in the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). When confronted with both legal and factual sufficiency arguments, we must first examine the legal sufficiency point. Texmarc Conveyor Co. v. Arts, 857 S.W.2d 743, 745 (Tex. App.CHouston [14th Dist.] 1993, writ denied). Under a legal sufficiency standard reviewing courts must consider all evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party=s favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). The findings are legally sufficient if they are supported by more than a scintilla of evidence. Formosa Plastics Corp. USA v. Presidio Eng=rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). If a party is attacking the factual sufficiency of an issue to which the other party has the burden of proof, the attacking party must demonstrate that there is insufficient evidence to support the adverse finding. See Hickey v. Couchman, 797 S.W.2d 103, 109 (Tex. App.CCorpus Christi 1990, writ denied). In considering Omodele=s factual insufficiency issues, we weigh all of the evidence in support of and contrary to the court=s implied findings. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We are to set aside the judgment only if the evidence supporting the findings is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). B. Elements of Common-Law Marriage The validity of common-law marriages has always been recognized in Texas. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978). A valid common-law marriage consists of three elements: (1) the couple agreed to be married; (2) after the agreement, they lived together in Texas as husband and wife; and (3) they represented to others in Texas that they are married. Tex. Fam. Code Ann. ' 2.401(a)(2) (Vernon 1998); Russell v. Russell, 865 S.W.2d 929, 932 (Tex. 1993). A common-law marriage does not exist until the occurrence of all three elements. Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.CHouston [1st Dist.] 1991, writ denied). The burden of proof is on the one seeking to establish the existence of such a marriage. State v. Mireles, 904 S.W.2d 885, 888 (Tex. App.CCorpus Christi 1995, pet. ref=d). 1. Agreement An agreement to marry need not be shown by direct evidence in order to establish common-law marriage, but may be implied or inferred from evidence that establishes the elements of cohabitation and holding out to the public as husband and wife. Smith v. Smith, 607 S.W.2d 617, 621 (Tex. Civ. App.CWaco 1980, no writ). Acts, statements, and conduct of a man and woman are pertinent evidence from which a fact-finder may reasonably infer an agreement between the two. See Hill v. Smith, 181 S.W.2d 1015 (Tex. Civ. App.CDallas 1944, no writ). Adams presented to the trial court both direct and indirect evidence supporting her claim that the parties agreed to be married. First, she provided uncontroverted testimony that she and Omodele had an agreement. Adams=s testimony, alone, is sufficient to show an agreement to be married. See Matter of Estate of Giessel, 734 S.W.2d 27, 32 (Tex. App.CHouston [1st Dist.] 1987, writ ref=d n.r.e.) (finding that widow=s testimony was direct evidence of an agreement to be married); Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App.CSan Antonio 1987, no writ) (stating that, although defendant denied the existence of an agreement to be married, plaintiff=s testimony, alone, was sufficient to support a finding of such an agreement). In addition, Adams submitted evidence of correspondence from Omodele to his Awife@ that he signed as her Aloving husband@ and Ahusband for life and forever.@ These facts constitute more than a scintilla of evidence to support the trial court=s implied finding that an agreement to enter into a marriage existed between Adams and Omodele. Omodele also complains that the evidence was factually insufficient to support this finding. Under a factual insufficiency claim we consider and weigh all evidence in the record. Omodele introduced no evidence controverting the existence of an agreement to be married. Omodele failed to even appear at the trial and his attorney presented nothing for us to consider. Therefore, we find factually sufficient evidence exists in support of the trial court=s implied findings. 2. Living Together as Husband and Wife A present agreement to be husband and wife, not followed by cohabitation, does not constitute a valid marriage. Grigsby v. Reib, 153 S.W. 1124, 1126-30 (Tex. 1913). A necessary ingredient of a common-law marriage is that the parties live together as husband and wife. Welch v. State, 207 S.W.2d 627, 628 (Tex. Crim. App. 1948). We note that neither the Family Code nor the common law provide a bright-line test to determine the length of time a couple must cohabitate to satisfy this requirement. See Tex. Fam. Code Ann. ' 2.401(a)(2). Rather, the cohabitation element is determined on a case-by-case basis. See, e.g., Winfield v. Reno, 821 S.W.2d 640, 645 (Tex. App.CHouston [1st Dist.] 1991, writ denied). In the case at hand, uncontroverted testimony established that the parties lived together from August 1998 to April 2000. Further, the parties purchased a home and insurance together as husband and wife in September 1999. Omodele submitted no evidence to contradict these facts. After considering all the evidence, we find it is legally and factually sufficient to support the element of living together as husband and wife. 3. Representing to Others Omodele also contends there was insufficient evidence, both legally and factually, to support the trial court=s implied finding that the parties represented to others that they were husband and wife. We disagree. The statutory requirement of Arepresentation to others@ is synonymous with the judicial requirement of Aholding out to the public.@ Eris v. Phares, 39 S.W.3d 708, 714-15 (Tex. App.CHouston [1st Dist.] 2001, pet. denied). It is well-settled that Aholding out@ may be established by the conduct and actions of the parties. Id. at 715. Spoken words are not necessary to establish representation as husband and wife. Id. The requirement may be established by evidence that the couple has a reputation in the community for being married. Id. At trial, Adams presented evidence in the form of conduct and documentary evidence to show that she and Omodele held themselves out to be husband and wife. The two signed legal documents purchasing a home and obtaining title insurance in which they identified themselves as husband and wife and identified the property as community property. Such a legal representation of marriage is sufficient. C. Consequence of Other Marriage Omodele argues that a common-law marriage between the parties could not exist because he was married to another woman at the time he allegedly married Adams. A marriage is void if entered into when either party has an existing marriage. Tex. Fam. Code Ann. ' 6.202(a). However, the later marriage becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married. Id. ' 6.202(b). More specifically, when a woman continues to live with a man as his wife after his divorce from a previous wife, a common-law marriage exists that may be the subject of divorce. See Potter v. Potter, 342 S.W.2d 800, 801 (Tex. Civ. App.CDallas 1961, no writ). The impediment to marriage that Omodele claims existed was removed when his divorce from Balogun became final in December 1999. Omodele and Adams continued to live together as husband and wife in their community property home until April 2000. Therefore, the prior marriage does not destroy the existence of a valid common-law marriage between Omodele and Adams. We conclude the evidence is legally and factually sufficient to establish the existence of a common-law marriage between Omodele and Adams. We overrule Omodele=s first point of error. III. Child-Support Award In his second point of error, Omodele argues that the trial court erred by awarding child support of $1000 per month because that amount was against the great weight and preponderance of the evidence. He argues that this award lacks evidentiary support and does not conform to the statutory guidelines regarding child support. Once the trial court determines the amount of the child-support obligation, that ruling will not be disturbed absent a clear abuse of discretion. Rodriguez v. Rodriguez, 860 S.W.2d 414, 415 (Tex. 1993). A trial court abuses its discretion if it clearly fails to analyze or apply the law correctly or if its decision is arbitrary and unreasonable. Walker v. Packer, 827 S.W.2d 833, 849-850 (Tex. 1992). In this case, the trial court made no findings of fact, and Omodele requested none. Therefore, we assume the trial court found all facts to support the judgment, and we will affirm the judgment if there is any legal theory supported by the record to justify it. Southwest Livestock & Trucking Co. v. Dooley, 884 S.W.2d 805, 807-808 (Tex. App.CSan Antonio 1994, writ denied). When, as here, a reporter=s record is filed, those findings are not conclusive. Roberson, 768 S.W.2d at 281. In awarding child-support, the trial court is required to base the amount ordered on the net resources of the parties and other applicable factors listed in the Family Code. See Tex. Fam. Code Ann. '' 154.121B.133 (Vernon 2002). The Family Code sets forth guidelines for child-support payments that are presumed to be reasonable and in the children=s best interests. Id. ' 154.122. These guidelines provide that an obligor-parent=s child-support obligation is to be a percentage of his monthly net resources, depending on the number of children he is to support. Id. ' 154.125. Here, appellant has at least three children, and thus the guidelines state that his monthly child support should equal thirty percent of his net resources. Id. ' 154.125(b). We first review the record to determine if the evidence supports an implied finding that Omodele has sufficient net resources to justify a $1000 monthly support payment under the guidelines. Omodele presented no evidence regarding his financial resources. Adams testified that Omodele currently pays her $400 a month in child support and owns a CPA/mortgage company and postal business, but she otherwise presented no evidence establishing his net resources. See id. ' 154.062 (setting forth elements that constitute net resources). In the absence of such evidence, the court shall presume that the obligor earns the federal minimum wage for a forty-hour week. Id. ' 154.068. Applying this presumption, the trial court=s award of $1000 per month is considerably more than thirty percent of Omodele=s net resources. If the trial court=s award varies from the child-support guidelines, the court is required to make certain specific findings regarding the variance. See id. ' 154.130. The language of this statute is mandatory. By refusing to make the findings required by section 154.130, the trial court prevented Omodele from effectively contesting the court=s deviation from the child-support guidelines. See Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996). Adams asserts that Omodele has waived his complaint because he never requested the required findings. However, section 154.130 is clear: the trial court is required to make the findings set forth in subsection (b) if a party either makes a timely written or oral request or Athe amount of the child support ordered by the court varies from the amount computed by applying the percentage guidelines.@ Tex. Fam. Code Ann. ' 154.130(a). Thus, no request was necessary to trigger the trial court=s obligation. In conclusion, in the absence of evidence of Omodele=s net resources, the statutory presumption found in section 154.068 applies. Accordingly, the trial court=s award of $1000 per month in child-support payments varies from the statutory guidelines. Therefore, we find the trial court abused its discretion by deviating from these guidelines without making the findings required in section 154.130. Omodele=s second point of error is sustained. IV. Motion for Continuance In Omodele=s third point of error, he contends the trial court exhibited bias against him. In addition to restating his sufficiency-of-the-evidence claim, Omodele=s argument focuses on the trial court=s denial of his motion for a continuance. We therefore treat this point of error as a challenge to the trial court=s denial of Omodele=s motion for continuance. A ruling on a motion for continuance will only be reversed for a clear abuse of discretion. State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984); Cedillo v. Jefferson, 802 S.W.2d 866, 867 (Tex. App.CHouston [1st Dist.] 1991, writ denied). In determining whether there has been an abuse of discretion, an appellate court views the evidence in the light most favorable to the trial court and indulges every legal presumption in favor of the judgment. Parks v. U.S. Home, 652 S.W.2d 479, 485 (Tex. App.CHouston [1st Dist.] 1983, writ dism=d). In determining whether the trial court has abused its discretion in denying a request for a continuance in order to secure testimony, three nonexclusive factors are instructive: (1) the length of time the case has been on file; (2) the materiality of the testimony sought; and (3) whether due diligence was exercised in obtaining the testimony. See Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 576 (Tex. App.CHouston [1st Dist.] 2001, no pet.); Levinthal v. Kelsey-Seybold Clinic, P.A., 902 S.W.2d 508, 510 (Tex. App.CHouston [1st Dist.] 1994, no writ). Omodele argues that the continuance should have been granted because he suffered a death in his family and needed to return to Nigeria. However, the record reflects that the death actually occurred several weeks prior to trial and that Omodele was aware of the scheduled trial date. Given that Omodele chose to miss his court date, we find he did not exercise due diligence in obtaining the testimony sought and, therefore, the trial court was within its discretion in denying his motion for a continuance.[1] We overrule Omodele=s third point of error. V. Conclusion We sustain Omodele=s second point of error, and we reverse the portion of the trial court=s judgment ordering Omodele to pay $1000 per month in child support. We remand to the trial court to render child-support orders in compliance with the statutory guidelines or issue findings explaining its variance. The remainder of the trial court=s judgment is affirmed. /s/ Leslie Brock Yates Justice Judgment rendered and Memorandum Opinion filed January 16, 2003. Panel consists of Justices Yates, Anderson, and Frost. [1] Adams also contends the court properly denied the continuance because Omodele=s affidavit lacked a specific date in the jurat. An Aaffidavit@ is Aa statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.@ Tex. Gov=t Code Ann. ' 312.011(1) (Vernon 1998). The statutory definition of Aaffidavit@ contains no requirement of a date. Cf. Cooper v. Scott Irrigation Constr., Inc., 838 S.W.2d 743, 745 (Tex. App.CEl Paso 1992, no writ). The lack of a specific date in the jurat of an affidavit does not render the affidavit invalid. Id. (citing Order of Aztecs v. Noble, 174 S.W. 623, 624 (Tex. Civ. App.CAustin 1915, no writ)).