Sallee S. Smyth

  1. Leyendecker v. Uribe, 2018 Tex. App. LEXIS 491 (Tex. App. – San Antonio January 17, 2018) (mem. opinion) (Cause No. 04-17-00163-CV)

W filed a petition for divorce in March 2016 asserting the existence of a common law marriage between W and H, dating back to 2000.  H filed an answer and denied the existence of the marriage and asserted the affirmative defense of quasi-estoppel.  H filed a no evidence and traditional MSJ.  H attached his own affidavit as SJ proof, claiming that the parties had lived together but separated in 2011 which was more than two years prior to suit for divorce, making it rebuttably presumed that there was no marriage under TFC 2.401.  Further, H attached copies of W’s tax returns for several years since 2000 in which she identified herself as single as well as her enrollment form with TRS identifying herself as single.  H also attached the transcript of his testimony from an earlier discovery hearing in which he stated he found W’s 2013 FIT at his residence also stating she was single.  W filed a response which included several affidavits from individuals who acknowledged that H had referred to W as his “wife” routinely and that they firmly believed they were husband and wife.  W also attached documents relating to her medicl treatment wherein H had signed his name affirming his financial responsibility for his “wife’s” treatment.  Ultimately the trial court granted H’s MSJ finding no common law marriage.  W appealed.  Initially W argued that H failed to trigger the rebuttable presumption of no marriage under TFC 2.401 because H admitted that he had found W’s 2013 FIT in his residence and that because this document was signed by w in March 2014 it was evidence that W was still living there less than two years before she filed suit.  The COA found this evidence to be no more than a scintilla, confirming that H had in fact properly triggered the rebuttable presumption which thereafter shifted the burden to W to establish that a CL marriage existed.  Thereafter the COA reviewed W’s SJ evidence and determined that she presented more than enough evidence to create a genuine issue of material fact as to the CL marriage claim, finding error by the trial court in granting SJ.  As to H’s affirmative defense of quasi estoppel, W claimed it did not apply because it was only available in defending against contract claims.  The COA agreed and further determined that to be applicable, there must be a mutuality of parties and the defense may not be asserted by or against a stranger to the transaction.  The COA reasoned that W’s representations to the IRS and the TRS that she was single did not involve H, that H was a stranger to these transactions and thus the defense was not available to him.  The COA notes that such representations do not prohibit a party from claiming the existence of a CL marriage but such representations may be relevant to deciding the parties’ state of mind or other issues in deciding the CL marriage claim.  SJ reversed and remanded.


  1. In re Coker, 2018 Tex. App. LEXIS 633 (Tex. App. – Austin January 23, 2018, orig. proceeding) (mem. opinion) (Cause No. 03-17-00862-CV)


H and W divorced pursuant to final decree signed in July 2017.  The decree was based on an MSA executed in January 2017.  Under the decree, the parties were named JMC of their six minor children, with W having the exclusive right to establish the residence of the 3 youngest children without geographic restriction and H having the same right regarding the three older children.  At the time of the MSA, W was living in Amarillo and H was living in Burnet County.  When the decree was signed in July, W was again living in Burnet County.  In August W told H that she was considering a move back to Amarillo where her new H had taken a job.  She notified H of her final decision to do so in early October.  H filed a MTM (without any affidavit) and requested a temporary injunction prohibiting W from moving outside Burnet or contiguous counties.  The trial court held a hearing.  H testified that his agreement that W could live anywhere with the children was “an emotional mistake” and that the children’s uninured medical costs would increase because of the move. W testified that she had family support in Amarillo and that her new husband’s job provided health insurance.  She further testified that she needed to work and that she had an interview for a good paying job the day after the hearing.  The parties presented conflicting testimony about the children’s desires.  An older sibling testified that the children were all very close.  The trial court ruled that it was in not the children’s best interest to be separated from their father or their siblings and that W must relocate with them back to Burnet County or within 50 miles of the county.  In early December, some 40+ days after the hearing H filed an affidavit with the court claiming that W was attempting to alienate him from the children.  He claimed they were not attending public school or being consistently homeschooled and alleged that their sleeping schedules were not consistent, sometimes staying up way too late and other times sleeping until noon.  The court signed an order in mid December and found that W’s conduct significantly impaired the safety and well being of the children and set forth terms obligating the children’s return to the designated geographic area.  W filed a petition for writ of mandamus.  The COA found that neither the affidavit, nor the evidence at the hearing, rose to a level necessary to grant relief under TFC 156.006.  The COA notes that the evidence must include specific allegations as to how the conduct described will significantly impair the children’s physical health or emotional development and identify specific acts or omissions that adversely affect the children.  The COA cites to several cases where similar allegations suggesting alienating behavior did not meet the threshold requirements for temporary orders in similar situations, noting that there must be more evidence to show the harm to the children beyond simply deciding something is not in their best interest.  Mandamus granted.  COMMENT:  I can’t resist mentioning that the parties had a total of 15 children, nine of which had emancipated.  It would seem that W’s need to work and her need to be closer to family support could be implied as a matter of law.  I’m just sayin’.


  1. Allen v. Allen, 2018 Tex. App. LEXIS 733 (Tex. App. – Fort Worth January 25, 2018) (mem. opinion) (Cause No. 02-17–00031-CV)


In April 2009 W purchased a residence.  In May she married H.  In early 2012 W executed a general warranty deed conveying to H an undivided one-half interest in the residence which stated consideration was “love of and affection for H”  Several years later W filed for divorce.  In her pleadings, W claimed that H had secured the transfer by fraud, claiming that when she was struggling to pay property taxes on the residence, H had advised her that she should convey an interest to him because the VA would pay for the property taxes.  Relying on this representation, W stated she conveyed the interest.  Ultimately the trial court found that the parties each owned an undivided interest in the residence as their separate property, ordered the property sold and appointed a receiver to administer the sale.  W appealed.  On appeal W argued that the trial court should have determined that the transferred interest in the residence should have been characterized as community property.  W argued that the trial court erred in not placing an equitable trust on H’s interest in the residence.  W further argued that the trial court had no authority to appoint a receiver over her separate property.  The COA first notes that the relief W seeks regarding the character of the transferred interest is not supported by her pleadings and the issue was not tried by consent.  W’s petition did not claim the transferred interest as community property under any theory.  Further the COA noted that the trial court could not have characterized it as such as a matter of law, noting that the only way to convert separate property into community property is by a proper conversion agreement under TFC 4.202 and that the general warranty deed did not meet the statutory requirements.  As to the equitable trust claim, again the COA noted that this relief was not requested in W’s pleadings.  Further the COA found that the trial court properly determined H did not commit fraud in connection with the deed transaction.  H testified that what he told W was that they could get an exemption on property taxes from the County since he was a disabled vet, not that the VA would pay the taxes.  Further, W was not damaged even if she relied on H’s statements to induce the deed because they had received the exemption and saved several thousand dollars on property taxes over the years.  Finally, the COA determined that because the parties’ owned the property jointly as separate property they were tenants in common and since the property could not be divided in kind, the trial court was authorized to partition the property and appoint a receiver for sale.  Judgment affirmed. 



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