Grigsby v. Grigsby

OPINION ESQUIVEL, Justice. This is an appeal from a summary judgment in a divorce case. Olga Grigsby, appellant, sued Robert Grigsby, appellee, for divorce alleging a common law marriage. The parties had previously been married and divorced. The trial court granted ap-pellee’s motion for summary judgment on the basis that no marriage existed. Appellant’s motion for new trial was denied. We reverse. Appellant raises four points of error, but we only need to address her first two points. [164] Appellant contends that the trial court erred in granting the motion for summary judgment because material fact issues existed regarding whether the parties represented themselves to others as husband and wife, and whether they had a present agreement to be married. There are three elements of a common law marriage: (1) an agreement to be married, (2) cohabitation, and (3) representation to others that the couple are married. TEX.FAM.CODE ANN. § 1.91(a)(2) (Vernon 1975). Appellee’s motion for summary judgment was based on the lack of an agreement to be married and the absence of any representation or holding out to others that they were married. Appellee did not seek to negate the cohabitation element. The standards for reviewing a motion for summary judgment are: 1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. 2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. 3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in her favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985). Once the movant has established his right to summary judgment, the non-movant’s response should present to the trial court issues which would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). The question on appeal is not whether the summary judgment proof raises a fact issue, but whether the summary judgment proof establishes as a matter of law that there is no genuine fact issue. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). We agree with appellant on her first point of error that a fact issue existed on the representation element. Appellant’s affidavit attached to her response to the motion for summary judgment recites, “I named Robert as my spouse and beneficiary on my insurance. Robert continues to designate me as his spouse and beneficiary on his insurance.” Cf. Jackson v. Smith, 703 S.W.2d 791, 795 (Tex.App.—Dallas 1985, no writ). Additionally, the affidavit stated that others addressed appellant as “Mrs. Grigs-by” in appellee’s presence. The affidavit of Ricardo Reyes showed that the parties cashed checks made payable to “Mr. and Mrs. Robert Grigsby.” We conclude that the summary judgment evidence failed to conclusively establish that the parties did not represent themselves to others that they were married. Appellant’s summary judgment evidence raises a material issue of fact as to the representation element. Accordingly, we hold that the summary judgment evidence does not establish as a matter of law that there is no genuine issue of fact as to representation. Appellant’s first point of error is sustained. We also sustain appellant’s second point of error and hold that appellant raised a fact issue concerning an agreement to be married. An agreement to be married need not be shown by direct evidence, but may be implied or inferred if it is established that the parties lived together as husband and wife and represented to others that they were married. § 1.91(b); Collora v. Navarro, 574 S.W.2d 65, 69 (Tex.1978). Appellee argues that appellant’s own summary judgment evidence showed there was no agreement to be married. We disagree. Appellant’s affidavit states, “During the time we were living together, Robert did ask me to participate in a ceremonial wedding for [our son’s] sake, but I told him that we were already living together as husband and wife and that [our son] had been bom in wedlock [during the previous marriage] and would not carry any stigma.” [165] Appellant’s statement does not establish the lack of an agreement. The statement is distinguishable from those in the case cited by appellee. See Leal v. Moreno, 733 S.W.2d 322 (Tex.App.—Corpus Christi 1987, no writ). In Leal, the party seeking to establish a common law marriage stated in summary judgment evidence that she and a man were trying out the relationship before actually getting married. Her statements conclusively established that there was no present agreement to be married. Id. at 323. In the present case, appellant’s statement in her affidavit does not preclude an inference that Robert Grigsby agreed to a common law marriage and additionally wanted a ceremonial marriage. The summary judgment evidence did not conclusively establish that there was no agreement to be married. A fact issue remains whether or not it can be inferred that such an agreement was present. Having sustained appellant’s first two points of error, we reverse the judgment and remand this cause to the trial court. BUTTS, J., dissented and filed an opinion.