Affirmed and Memorandum Opinion filed January 8, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00816-CV

ESTATE OF SCOTT GREGORY SUMMERS, DECEASED

On Appeal from the Probate Court

Galveston County, Texas

Trial Court Cause No. PR-0073663

MEMORA NDUM OPINION

In this proceeding to determine heirship, the sole issue is whether the 

evidence is factually sufficient to support the trial court’s findings of fact 

underlying its conclusion of law that Kathleen Martorell Marden and Scott 

Gregory Summers, the decedent, were not informally married. We affirm.

Facts and Procedural Background

Marden and the decedent started dating in 2008. Marden moved in with the 

decedent in August 2008. The couple lived together until the decedent died 

intestate on May 2, 2012 in Houston, Harris County, Texas. After learning of the 
decedent’s death, the decedent’s son, Gregory Lance Summers, filed an application 

for letters of administration and an application for a proceeding to determine 

heirship. See Tex. Estates Code Ann. §§ 202.005, 301.052 (West 2014). Marden 

objected to Summers’s application for a proceeding to determine heirship, claiming 

that she was the decedent’s wife by informal marriage. Marden also filed an

application for letters of administration. The trial court held a hearing to determine 

heirship.

At the heirship hearing, Marden testified that she and the decedent began 

dating in April or May of 2008 and she moved in with him in August of that same 

year. Marden stated that she and the decedent decided to be husband and wife in 

approximately 2009; then, they discovered that the decedent was still married to 

his prior wife. Therefore, they “got married again after that one.” She said that she 

and the decedent “were eventually supposed to go to Las Vegas. . . . We were 

going to go to Vegas and get married by an Elvis impersonator.” Marden further 

testified that she told everybody that she and the decedent were married. Marden 

indicated that she had to tell everyone because the decedent was a lady’s man. 

Marden acknowledged that the decedent cheated during the four years they were 

together as a couple. Marden did not wear a wedding ring; however, she testified 

that her pickup truck was her wedding ring. Further, Marden testified that the 

decedent told her she would be the last Mrs. Summers.

Marden also testified that the decedent filed a document with his employer 

indicating that Marden and the decedent were married. This document was not 

admitted into evidence. However, the court did admit Marden and the decedent’s 

joint tax returns and a pay stub from the decedent’s employer, BNSF Railway 

Company. The tax-return exhibit contains a copy of the couple’s 2010 tax return 

and a copy of one page from their 2011 tax return. The 2010 portion of the tax2
return exhibit is marked “Copy Only Do Not File.” Marden explained that she 

obtained the copy from John Brown, the tax preparer. The 2010 portion of the 

exhibit bears the signature of John Brown. In the signature blanks for the filers, the 

following typed statement appears: “For Info Only – Do not file.” The 2011 

portion of the exhibit does not have any signatures. The 2010 and the 2011 tax 

returns bear the names of both the decedent and Marden, and in the Filing Status 

section of both tax returns, the “married filing jointly” box is checked. The 

decedent’s pay stub has a box entitled “Status.” The box contains the letter “M.” 

According to Marden, this shows that the decedent’s status was “married.”1

Finally, Marden testified about the decedent’s May 2012 accident and death.

She went to the hospital after hearing of the decedent’s accident. Gregory had 

already instructed the hospital that he was the next of kin, so after two days at the 

hospital Marden “went to the legal department of Hermann Memorial.” Marden 

stated, “They took next of kin from Gregory. It was assigned to me. And I 

unplugged his father that morning because the outcome would have been horrific; 

and he would have been a quadriplegic.”

Linda Moore, one of Marden’s friends, testified that the decedent would 

introduce Marden to others as his wife. Moore urged that the decedent never 

denied that he and Marden were married. Further, Moore recalled the decedent and 

Marden coming to the office of the lawyer for whom she worked for the purpose of 

doing “their insurance”; however, it was at that time that the decedent discovered 

that he was still married to another woman. It was Moore’s employer who 

subsequently represented the decedent in his May 2010 divorce. Moore did not 

know whether the decedent or Marden wore a wedding ring.

1 We note that the pay stub does not indicate who the decedent was married to.

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Joel Grimmett, one of Marden’s coworkers, testified that the decedent 

introduced and referred to Marden as his wife. 

Marden’s adult daughter testified that she lived with the decedent and 

Marden for approximately one year. She lived with them until the November 

before the decedent’s death. She described meeting the decedent about six years 

earlier. She testified that after the decedent and Marden had been together for 

about two years, the decedent asked her for permission to marry Marden. 

According to Marden’s daughter, after the decedent asked for permission to marry 

Marden, he and Marden did “some paperwork and stuff like that, and I had to be 

put on the insurance after they were married so that I could be under his insurance 

plan.” Marden’s daughter also stated that the decedent wore a Harley Davidson 

ring on his “wedding finger.” She did not know whether Marden had a wedding 

ring. Marden’s daughter did not know whether Marden and the decedent followed 

through with their plans to have a ceremonial wedding.

David Etzel was the decedent’s friend of 14 years and one of his coworkers. 

Etzel testified that the decedent never spoke about getting remarried or planning to 

remarry. In the four to five months before the decedent’s death, Etzel and the 

decedent spoke five to six times per week. During that time Etzel also visited the 

decedent’s home as often as twice per week. Etzel was aware that the decedent and 

Marden lived together; however, to Etzel’s knowledge, the decedent was not 

married to Marden at the time he died. Etzel testified that the decedent never 

referred to Marden as his wife and never indicated to Etzel that he and Marden had 

agreed to be married. Etzel testified that the decedent did not wear a wedding ring. 

Additionally, according to Etzel, it was possible to put non-relatives onto their 

company’s insurance plan. 

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Janice Summers was the decedent’s adoptive mother. She testified that the 

decedent did not remarry after his May, 2010 divorce. Summers further testified 

that Marden was the decedent’s girlfriend and that the decedent never expressed to 

her that he was, or intended to be, married.

Jane Randolph, the decedent’s mother-in-law from his first marriage,2 kept 

in touch with the decedent intermittently. She did not think he was married at the 

time of his death.

Rick Summers, the decedent’s brother, testified that he “hung out” with the 

decedent every couple of months. He further testified that, based on his 

relationship with his brother, he believes the decedent would have told him if he 

was married. As a result of the manner in which the decedent described his

relationship with Marden, Rick stated that the decedent was not married at the time 

of his death and that Marden was just a friend from Texas.

During the hearing, Etzel also stated that the decedent would publically refer 

to Marden as his “old lady.” Etzel explained that among his and the decedent’s 

motorcycle friends the term “old lady” could mean girlfriend or could mean wife.

The parties elicited other testimony regarding the meaning of that term. Moore 

acknowledged that the term “old lady” refers to a person with whom the declarant 

is in a “serious relationship.” Grimmett testified that “old lady” is synonymous 

with “girlfriend.”

After the hearing, the court made the following relevant findings of fact and 

conclusions of law:

• Kathleen Martorell Marden and Decedent did not have an 

agreement to be married.

2 Not counting his alleged informal marriage to Marden, the decedent had been married 

five times.

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• Kathleen Martorell Marden and Decedent cohabitated in Texas.

• Kathleen Martorell Marden and Decedent did not hold out to 

others that they were married.

• Kathleen Martorell Marden is not the surviving spouse of 

Decedent.

• Decedent was not married at the time of his death.

Appellant timely appealed. On appeal, Marden contends that the evidence is 

factually insufficient to support the trial court’s findings regarding the decedent’s 

marital status.

Standard of Review

Findings of fact entered in a case tried to the court have the same force and 

dignity as a jury’s answers to jury questions. Anderson v. City of Seven Points, 806 

S.W.2d 791, 794 (Tex. 1991). The trial court’s findings are reviewed for factual 

sufficiency of the evidence under the same legal standards as are applied to review 

jury verdicts for factual sufficiency of the evidence. Ortiz v. Jones, 917 S.W.2d 

770, 772 (Tex. 1996).

When, as here, a party challenges the factual sufficiency of an adverse 

finding on an issue on which that party has the burden of proof, the factualsufficiency challenge will be sustained only if the trial court’s findings are so 

against the great weight and preponderance of the evidence as to be clearly wrong 

and manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 

2001); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When conducting a 

factual-sufficiency review, we must consider all the evidence in the record. 

Francis, 46 S.W.3d at 242. The factfinder is the sole judge of the credibility of the 

witnesses and the weight to be given their testimony. Small v. McMaster, 352 

S.W.3d 280, 283 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). We cannot 

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substitute our own judgment for that of the factfinder even if we would reach a 

different answer on the evidence. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 

61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). The 

amount of evidence necessary to affirm the factfinder’s judgment is far less than 

that necessary to reverse its judgment. Id.

Discussion

An informal or common-law marriage exists in Texas if the parties (1) 

agreed to be married, (2) lived together in Texas as husband and wife after the 

agreement, and (3) there presented to others that they were married. See Tex. Fam.

Code Ann. § 2.401(a)(2) (West 2006); Mills v. Mest, 94 S.W.3d 72, 73 (Tex.

App.—Houston [14th Dist.] 2002, pet. denied). The existence of an informal 

marriage is a fact question, and the party seeking to establish the existence of the 

marriage must prove the three elements by a preponderance of the evidence. 

Weaver v. State, 855 S.W.2d 116, 120 (Tex. App.—Houston [14th Dist.] 1993, no 

pet.). An informal marriage does not exist until the concurrence of all three 

elements. Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.—Houston [1st Dist.] 

2001, pet. denied).

The parties do not dispute that Marden and the decedent lived together in 

Texas. Therefore, our discussion will focus on the first and third elements of 

informal marriage—the agreement and holding-out elements. “To establish an 

agreement to be married, ‘the evidence must show the parties intended to have a 

present, immediate, and permanent relationship and that they did in fact agree to be 

husband and wife.’” Small, 352 S.W.3d at 283 (quoting Eris, 39 S.W.3d at 714).

The proponent can prove this element by direct or circumstantial evidence. Id.

“Holding out” or “presenting to others” can be established by the conduct 

and actions of the parties. Id. at 285. Occasional introductions as husband and wife 

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are not sufficient to establish the element of holding out. Id. The holding out 

element is established if the couple had a reputation in the community for being 

married. Id. “Reputation in the community for being married” means the couple 

“consistently conducted themselves as husband and wife in the public eye or that 

the community viewed them as married.” Id.

The evidence relating to the agreement and holding-out elements was 

conflicting. With regard to the agreement element, the record could support a 

finding that Marden and the decedent agreed to be married. Marden and the 

decedent were living together at the time of the decedent’s death, and several 

witnesses testified that Marden and the decedent referred to each other as husband 

and wife. This circumstantial evidence constitutes some evidence of an agreement 

to be married. See id. at 283 (agreement to be married can be proved by direct or 

circumstantial evidence).

On the other hand, the record, including Marden’s own testimony, also 

supports a finding that Marden and the decedent did not agree to be married. 

Marden testified that she and the decedent planned to marry in Las Vegas. Such 

testimony suggests an agreement to get married, not an agreement to be married.

Additionally, Marden’s daughter testified that the decedent asked for permission to 

marry Marden. This testimony also falls short of a present and immediate 

agreement to be married; rather, it indicates that Marden and the decedent planned 

to marry at some point in the future. See, e.g., Lopez v. Mo. K. & T. Ry. Co., 222 

S.W. 695, 697 (Tex. Civ. App.—San Antonio 1920, writ dism’d) (finding no 

informal marriage when couple did not presently agree to marry, but were “going 

to get married” in the future). Furthermore, just as an agreement could be inferred 

from the circumstantial evidence summarized above, other circumstantial evidence 

indicates that Marden and the decedent did not agree to be married. Specifically, 

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several witnesses testified that the decedent did not refer to Marden as his wife; the 

decedent did not intend to remarry; and Marden was only the decedent’s girlfriend, 

not his wife.

With regard to the holding-out element, the record contains some evidence 

supporting the holding-out element of informal marriage. The testimony of 

Marden, Moore, and Grimmett indicated that both Marden and the decedent 

introduced each other publically as husband and wife. Additionally, some of the 

documentary evidence admitted by the trial court suggests that Marden and the 

decedent did hold themselves out as a married couple.

On the other hand, the record also supports a finding that Marden and the 

decedent did not hold out to others that they were married. For example, Etzel, 

Janice Summers, and Rick Summers, witnesses who had a close relationship with 

the decedent, all testified that Marden was only the decedent’s friend or girlfriend. 

Etzel also testified that the decedent did not refer to Marden as his wife. And,

although the term “old lady” could mean “wife” in certain circumstances, the 

evidence in this case suggests that the term could also mean “girlfriend” or refer to 

a person with whom the declarant is in a “serious relationship.” Finally, given the 

nature of the unsigned tax-return exhibit and pay-stub reference to “M,” the trial 

court was not bound by Marden’s characterization of the documentary evidence. 

The resolution of the conflicting evidence turned on witness credibility and 

the weight given to the evidence. It was within the trial judge’s purview to resolve 

these conflicts. Small, 352 S.W.3d at 284; see, e.g., In re Estate of Walker, No. 02-

08-00371-CV, 2009 WL 1996301, at *4 (Tex. App.—Fort Worth July 9, 2009, no 

pet.) (mem. op.). The trial court resolved the conflicting evidence by finding that 

Marden and the decedent had not entered into an informal marriage. After viewing 

all of the evidence, we cannot say the evidence supporting the trial court’s findings

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is so against the great weight and preponderance of the evidence as to be clearly 

wrong and manifestly unjust. Therefore, the evidence is factually sufficient to 

support the trial court’s findings.

We overrule Marden’s sole issue on appeal.

Conclusion

Having overruled Marden’s sole issue on appeal, we affirm the trial court’s 

judgment.

/s/ Marc W. Brown

Justice

Panel consists of Justices McCally, Brown, and Wise.

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