### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00704- CV

Kar en Kuest er, A ppellan t

v.
Ivor G ree n, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -F M- 12- 0064 30, H ONO RAB LE P AUL R. DAVIS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n tw o is s u e s , K a

r e n K u e s te r a p p e a ls f r o m a s u mm a r y ju d g me n t in f

a v o r o f I v o r G r e e n
in a suit for divorce involving an a lleg ed common-la w marr iag e. We will affir m.

BACK GR OUND

Kuester and Green star

ted dating i n 2001. I n 2002, Kuester ended the rela tionship

beca use Kuester wanted to g et marrie d and Gre en did no t

. Gr een later asked Kuester to g et back
toge ther, and in 2004, Kuester moved in with Gre en. Kuester an d Gre en never participa ted in a
formal we dding c ere mony , and no Te x as marr iag e license was e ver issued to them.

I n May 2010, Kues te r a

n d G r e en cea sed living toge ther. Over two y ear s later, Kuester
sued Gre en for divorce and for additional cause s of action. Kuester asser ted that she had been in a

c o mm o n
- la

w ma r r ia g e w it h G r e e n s in c e 2 0 0 4

. G r e e n d e n ie d th a t h e h a d e v e r b e e n ma

r r ie d to K u e s te r

.Gre en filed a motion for s u m m ar y j udg ment on the divorce claim, which the trial

court g rante d. The court then sever ed all of Kuester ’s claims not go v er n ed by the Texas Family

Code into a separ ate cause of action. This appea l from the trial court’s summary judgme nt followed.

STANDARD OF REVIEW

We r e v ie w a tr ia l c o u

r t’ s g r a n t o f s u mm a r y ju d g me n t d e n o v o

. V

a le n c e O p e r a ti n g Co

.

v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). When, as here , a trial court g rants summary judgme nt
but does not specify the g rounds for g ranting the motion, we must uphold the judgme nt if any of the

g rounds asser

ted in the motion and pr eser ved for appellate revie w are meritorious. Provident Life

& Acc ident Ins. Co. v

. Knott , 128 S.W .3d 211, 216 (Tex. 2003)

. I n revie wing a trial court’s ruling

on summ ar y j u d gm ent, we take as true all evidenc e favor able to the nonmovant, and we indulge

ever y rea sonable infere nce and resolve all d o u b t s i n t h e nonmovant’s favor

. Id. To preva il on a
traditional motion for summary judgme nt, the moving party must establish that there is no g enuine

issue of materia l fac t and that it is entitled to judgme nt as a matter of law. Tex. R. Civ. P. 166a(c ). 1

Kuester responde d to Gre en’s motion for summary judgme nt as though Gre en had asser ted 1 only no-evide nce gro u n d s and raises only no-evide nce g rounds on appea l. See Tex. R. Civ. P. 166a (i). Be cause he filed a motion for summary judgme nt on traditional g rounds, Gre en claims that Kuester has waived her rig ht to complain on appea l that the trial co urt err ed in g ranting this motion. We will assume, without deciding , that Kuester has n o t wa i v ed her ability to respond to Gre en’s traditional g rounds, and we will consi d er wh et h er Kuester has raised a g enuine issue of materia l fac t on eac h element of her c laim. To the ex tent Gre en’s moti on also raise d no-evide nce g rounds, we need not consider t h em b ec au s e the traditional g rounds are dispositi ve. See Poag v. Flories , 317 S.W .3d 820, 825 (Tex. App.—For t Worth 2010, pet. deni ed ) (“Although when both no-evide nce a

n d tr aditional summary judgme nt motions are filed we usually addre ss the no-evide nce motion first, here we will revie w t he propriety of gra nting the trad i t i o n al s u m mary judgme nt first beca use it is disposi tive.”) ( citation omitted).
2A defe ndant who conclusively neg ates at least one of the essential e lements of a c ause of action is entitled to summary

judgme nt. See Nall v. Plunke tt , 404 S.W .3d 552, 555 (Tex. 2013).

“An informal or common-law marria g e exis ts in Texas if the parties (1) ag ree d to be

marrie d, (2) lived toge ther in Texas as husband and wife afte r the ag ree ment, and (3) repr esente d to
others that they wer e m ar ri ed

. ” Burden v. Burden , 420 S.W .3d 305, 308 (Tex. App.—Texarkana
2013, no pet.); see Tex. Fa m. Code § 2.401(a) (2). “A common-law marria g e does not exis t u n t i l

the concur

renc e of all three elements.” Eris v. Phares , 39 S.W .3d 708, 713 (Tex. A pp.—Houston [1st Dist.] 2001, pet. denied)

.

We also note that Kuester sued Gre en for divorce more t h an t wo y ear s afte r their

separ ation. There fore , there is a rebuttable presumption that they wer e never marrie d. See Tex.

Fam. Code § 2.401(b) (providing that if a proce eding in which an informal marria g e is to be proved

“i s n ot commence d befor e the second anniver sary of the date on which the parties separ ated and

cea sed living tog ether , it is rebuttably presumed that the parties did not enter into an ag ree ment to be married”)

. This presumption require s the t rier- of-f act t o conclude , in the absence of evidenc e,

t h at t h e parties never ag ree d to be marrie d, and, at the summary -judg ment phase, “the resistin g
party must come forwa

rd with evidenc e sufficie n t t o n eu t ralize the eff ect of the presumption in

order to pr operly allow the case to pr ocee d to tr ial.” Amaye v. Orav etz , 57 S.W .3d 581, 584 (Tex. App.—Houston [14th Dis t.] 2001, pet. denied)

.

DISCUSSIO N

Gre en produc ed the f

ollowing summary -judg ment evidenc e:

3• Gre en’s aff idavit as s er t ing that he never ag ree d to be marrie d to Kuester , never lived with Kuester as husband and wife, and never held himself out as marrie d to Kuester.

• A g ener al war

ranty deed show ing tha t in 2004, after moving in w ith Gr een, Kuester sold her home a

nd indicated that she was “ an unmar ried pe rson.”

• A trust ag ree ment Gre en executed in Aug ust 2004, afte r Kuester had moved into his residenc e, which contained the following statement: “F or purposes of this Trust Ag ree ment, [G re en ] and [Kuester] shall not be considere d
m arr ied, formally or informally , unless they are formally marrie d afte r the issuan ce o f a wedding license and pursuant to a formal wedding cer emony conduc t ed b y an authorized person pursuant to the laws of any applicable jurisdiction.” The trust agr eement provided for Kuester in differ ent way s depending on whether Kuest er and Gre en wer e marrie d, living toge ther, or separ ated a t the time of Gre en’s de ath.

• I RS income tax returns indicating that Kuester desig nated her filing status as “Single ” for the y ear s 2004 and 2007–2010. Kuester also amende d her 2009 2 tax return to claim a first time home buy er’ s cre dit, and she indicated on the form that she w as sing le.

• An email from 2006 in which Ku est er soug ht leg al counsel to draf t a p r e n u p ti a l a g r e e me n t. K

u e s te r w r o te th e f

o ll o w in g : “ I ’ m lo o k in g f

o r s o me o n e to explain my rig hts as a ‘domestic partne r’, write a prenup for me & I vor (whose atty s will then g o over) , and a will for me.” I n a later email, Kuester wrote: “D o y o u want to do the prenup and I ’ll still g o with Sarah for the domestic partne rship rig hts? The re ason I ’m still pursuing that is beca use I still want to know whe re I stand in case he g ets cold fe et. Ag ain.”

• Kuester ’s will, wh i ch wa s executed in 2007 and stated that she was “not marrie d.”

• A g ener al war

ranty deed showing that in 2009 Kuester purcha sed a home in her na me alone.

• A police repor

t showing that in 2010, when Kuester and Gre en separ ated, the police wer e summoned afte r Kuester acc identally discharg ed a firea rm.

Kuester ’s tax returns for othe r y ear s do not appea r in the re cord. 2

4Kuester told the police that “she and her ‘life partne r’ wer e g oing thr[ough] a sep[a]ration.”

• Kuester ’s revised will, whic h was executed in J uly 2011 and stated that she was “not marrie d.” Kuester executed another revised will in October 2011 and ag ain indicated tha t she was “ not married.”

• A 2 0 1 1 e ma il f

r o m K u e s te r to G r e e n , in w h ic h K u e s te r to ld G r e e n th a

t s h e w a s g oing to ke ep the “ we a

re not g oing to g et marr ied” r ing he had g iven her

.

• Medica l forms from 2012, in which K uester indicated that she wa s single.

T h i s evidenc e conclusively neg ates the first element of Kuester ’s claim beca use it

establishes that Green and Kuester did not ag ree to be married. Kuester ref ers to her self as sing le

in a number of documents completed throug hout the course of their rela tionship. More importantly , these documents are ac co m p an i ed by Gre en’s 2004 trust ag ree ment, in which he expli citly stated

that he did not consider himself to be and should not be considere d marrie d to K uester unless they

wer e formally marrie d at a later date, and a 2006 email from Kuester , in wh i ch Ku es t er s oug ht a prenuptial ag ree ment beca use she believed that Gre en may continue to have “cold fee t” about g etting

marrie d. Kuester ’s email implies that the couple was not prese ntly marrie d and expresses doubts that they ever would be.

I n response to Gree n’s motion, Kuester submitted the following evidenc e: 3

• An af

fidavit in which Kue ster asse rted the f ollowing:

Gre en objected to cer

tain evidenc e submitt ed by Kuester , an d t h e trial court sustained 3 those objections. I n her second issue on appea l, Kuester challeng es the court’s evidentiar y ruling s. Howeve r, we conclude that any err or was harmless beca use it did not cause the re n dition of an im p r o p e r ju d g me n t. S

e e T e x. R. A

p p

. P. 4 4

. 1 ( a )

. We c o n s id e r th e e xc lu d e d e v id e n c e in o u r d is c u s s io n below to illustrate this point. W e ther efor e over rule Kue ster’s se cond issue.
5• When Kuester and Green beg an dating , Gre en was Kuester ’s supervisor.

• After dating Gre en for about one y ear , Kuester ended the rela tionship beca use Gre en initially

showed he sitation about marry ing he r.

• Gre en later i nitiated a conversation with Kuester in which he stated that h e wanted to g et back toge ther. Gre en made sever al promises, including that they wer e to be marrie d and that he would take car e of Kuester for the rest of her l i fe

. Gre en and Kuester ag ree d that they
wo u ld sell their individual houses and buy a new home toge th er

. Kuester stated in he r aff

idavit, “ I left our meeting that day believing that we had just ag ree d to a nd committed to spending the rest of our lives toge ther a s husband and wif e.”

• About a y ear later, Kuester moved into Gree n’s re sidence . She also quit her job b ec au s e Gre en wanted her “to fill the more traditional role of being a domestic housewife .” Kuester was willing to l eave her job and benef

its beca use Gre en had expressed that they would be toge ther fore ver and that he would take car e of he r eve n if they “g ot sick.” Kuester

stated, “I believed he was communicating to me that
we we re infor

mally marrie d, and that we wer e, in fa ct, marr ied.”

• Rely ing on Gre en’s assura nces, Kuester sold her home in 2004. She also disposed of many

of her persona l belong ings.

• Kuester visited Gre en’s mother in her final day s and, afte r her death, comforte d Gre en’s f

ather

.

• Kuester and Gre en wer e close with eac h other’s fa m i l i es. Gre en’s fathe r ref err ed to Kuester as being “li ke a daug hter,” and Kuester ’s niece ref err ed to Gre en as “Unc le I vor.” Gre en’s g randc hild ref err ed to Kuester a s “Gra

ndma.”

• “The re are also many instances wher e I v o r i s re fer red to as my husband, either

by me or by a member

of the c ommunity .”

• Gre en purc hased a n eng ag ement ring

and wedding ring for Kuester , and Kue ster wor e them almost eve ry day

.

• Kuester took car e of their home and was an authorized user on one of Gre en’s a ccounts.

6• Kuester and Gr een “ went eve ry wher e toge ther” and “did ever y thing toge ther.” They spent h o l iday s toge ther, vacationed toge ther, and shopped tog ether

.

• At a social gat h er i n g , a family friend asked Gre en if she could put Kuester ’s “na

me in ink” in her a ddress book, a nd Gre en said “ y es.”

• Kuester

oversa w an e x pensive re model of their home.

• When Kuester beg an to suffe r from phy sical and men t al illness, Gre en remove d her possessions from the home. W h en Kuester attempted to ree nter the house, Gre en called the police and told them that Kuester

was not his wife.

• “Prior to I vor t h ro wi n g me out, I knew that I vor had ag ree d to and that we we re living as husband a nd wife. But, I was concer ned that
we had not been formally marrie d, with a license. I was conce rned at time s ab o ut the leg al conseque nces and difficulties should I vor chang e his mind conce rning our rela tionship. I approa ched I vor sever al times about formalizing our m ar ri ag e. He alway s replied, ‘We don’t need a cer emony to show o u r l o v e.’ He would also say , ‘Don’t worry , I am g oing to take car e of y ou for the rest of y our life’.”

• “I al way s felt that we wer e marrie d. I vor alway s confirme d that belief.”

• “I vor never once said he did not want to marry me. He never once said that we wer e not marrie d. He did say that I did not need to worry , that we would alway s be together , and that he would al wa y s love, ca re, a nd support me.”

• “I alway s knew we wer e marrie d—that was our ag ree ment and that was how w e lived our lives.”

• A series of emails betwee n Kuester and a jewele r in w hich Kuester ref err ed to her “computer g enius husband” and ref erred t o Green’s rela

tives as her “daug hter-in- law and g randson,” and the jewele r ref err ed to Gre en ’s g randc hild as Kuester ’s “g randson.”

• An email from Kuester to a C athy Neg rel in which Kuester refe rs t o Gre en as her husband.

7• An em ai l fr o m a Cindy Kunkel to Kuester in which Kunkel states, “I hope y ou and y our husband ha d a lovely wee kend.”

• An email from Kuester to a hotel in which Kuester states, “My husband loved the bed so much he wants us to buy one just like it.”

• Arc hitectura l blueprints for the remode l of the home, which contain the label, “Mr. Gr een & Mrs. Kuester .”

We conclude that Kuester has failed to raise a g en u i n e i s s ue of materia l fac t as

to whether s h e an d Gre en ag ree d to be marrie d. Kuester has not prese nted more than a scintilla

of evidenc e that she and Gre en “intended to have a prese nt, i m m ed i at e, and perma nent marital

re l at i o nship and that they did in fac t ag ree to be husband and wife.” See Eris , 39 S.W .3d at 714;

see also Burden , 420 S.W .3d at 308 (“ To establish that the par ties ag ree d to be husband and wife,

it mu s t b e shown that they intended to cre ate an immediate and perma nent marria g e rela tionship,

not mere ly a temporar

y cohabitation that may be ended by either party .”). I nstead, Kuester has

prese nted evidenc e only that she wished to marry Gre en, that Gr een pr omised her that they would

g et marrie d, and that Gre en assure d Kuester that he would take car e of her for the rest of her life. Although an ag ree ment to marry may be established by circ umstantial evidenc e, see Russell v.
Russell , 865 S.W .2d 929, 933 (Tex. 1993), “an occa sional uncontra dicted ref ere nce to a cohabitant

as ‘my wife’ o r ‘my husband’ or ‘mine’ will not prove a tacit ag ree ment to be marrie d without

corr oboration.” Id. at 932 (q u o t i n g J oseph W. McKnig ht, Family Law: Husband and W ife , 44

Sw. L .J

. 1, 3 (1990))

. Whil e Kuester may have subjectively believed that she was marrie d to Gre en,
there i s n o ev idence that Gre en believed they wer e marrie d, and the summary -judg ment rec ord is

filled with conclusive proof that Kuester and Gre en never rea ched an acc ord in that reg ard. Kuester

8has failed to overc ome t he st atutory presumption that they wer e never mar ri ed , an d the t rial court

did not err in g ranting summary judgme nt to Gree n on this basis.

We also conclude that Kuester has failed to produce sufficie nt evidenc e to raise a fac t question as to whether she and Gre en held themselves out as marrie d. “The element of holding out require s more than occa sional ref ere nces to eac h other as ‘wife ’ and ‘husband.’ ” Smith v

. Dene ve , 285 S.W .3d 904, 910 (Tex. App.—Dallas 2009, no pet

. ). Ku es t er submit ted evidence that Gre en purcha sed rings for her and that Kuester wore the ring s often. Howe ver, this evidenc e alone does

not raise a fac t question. See id. (holding that “Smith d i d n o t ad duce evidenc e of holding out
sufficie nt to raise a g enuine fac t issue” even though Smit h testified that Dene ve had acc epted his ring

and they had bee n introduced by

others as husba

nd and wife ). I n addition, Kuester a sserted in he r
aff idavit that she and Gre en wer e close to e ach other’s families, and she produce d emails in which

Gr ee n is ref

err ed to as her husband. Howeve r, Kuester did not indicate the fre quency o f t h e

repr esenta tions of Gre en as her husband. See Castil lon v. Morgan , No. 05-13-00872- CV, 2015 WL
1650782, at *4 (Tex. A

pp.—Dallas Apr. 14, 2015, no pet.) (mem. op.) (“She testified that she and

Castillon ‘re prese nted ourselves as marrie d,’ but she prese nted no evidenc e of the fre quency of this

re p rese ntation.”). Nor did Kuester produce any evidenc e that Gre en himself ever ref err ed t o h er
as hi s wife. See Lee v. Lee , 981 S.W .2d 903, 907 (Tex. App.—Houston [1st Dist.] 1998, no p et.) (noting that only one party held out as mar ri ed ); W i n f i eld v. Renfro , 821 S.W .2d 640, 651 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (same)

. Nor did Kuester bring forwa rd a single friend

or a member of either family to testify t h at she and Gre en held themselves out as marrie d. See

Ex parte Threet , 333 S.W .2d 361, 364–65 (1960) (“U nder the Texas decisions, there can be no secr et

9common law marria g e as such. The secr ecy is inconsistent and irrec oncilable with the require ment

of a public holding out that the couple a re living toge ther a s husband and wif e.”)

. Kuester failed to raise a g enuine issue of materia l fac t conce rning two of the require d

elements of a common-law marria g e. I n d ee d , both Gre en’s and Kuester ’s evidence demonstrates

th a t, f a r f r o m a g r e e in g to ma

r r y K u e s te r , G r e e n c a

r e f u ll y s tr u c tu r e d th e ir r e la

ti o n s h ip to a

v o id ma r r ia g e

o r a n y u n c o n d it io n a l c o mm it

me n t. T h e r e f

o r e , th e tr ia l c o u

r t d id n o t e r

r in g r a n ti n g s u mm a r y ju d g me n t
in Gree n’s fa vor. Ac cording ly , we ove rrule K uester’ s first issue on appea l.

CONCLUSION
We affir m the trial court’ s g rant of summar y judgme nt.

__________________________________________ Scott K. Field, Just ice

Be fore J ustices Pury ear , Goodwin, and F ield

Affir med Filed: Aug ust 20, 2015

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