TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00498-CV

Justin M. Thomas, Independent Executor of the Estate of James Henry Thomas, Appellant

v. 

Lois Doolittle, Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY

NO. 22-0099-P, THE HONORABLE CHRISTOPHER P. JOHNSON, JUDGE PRESIDING

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

 Appellant Justin M. Thomas (Justin), independent executor of the estate of 

Dr. James Henry Thomas (Thomas), challenges the legal and factual sufficiency of the evidence 

in support of the trial court’s order granting appellee Lois Doolittle’s petition for declaratory 

judgment, in which the court ordered that Thomas and Doolittle were to be considered 

informally married. We affirm the trial court’s order.

BACKGROUND

 Thomas died in March 2021. In July 2022, the trial court admitted to probate 

Thomas’s 2015 will, in which he had attested, “At the time of the execution of this Will, I am not 

married.” The will bequeathed his personal property to his two children, Justin and 

Stephanie Thomas (Stephanie); bequeathed the remainder of his estate to the James Henry 

Thomas Living Trust; and appointed Justin as independent executor of Thomas’s estate. The 
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trust agreement, which was executed on the same day as the will, named Justin and Stephanie as 

Thomas’s beneficiaries; awarded each child half of the trust amount and provided each with a 

monthly allotment of $5,000; appointed Justin as successor trustee on Thomas’s death; scheduled 

a $2,500 monthly allotment to Doolittle until her death; and entitled her, if she survived Thomas, 

to reside for the rest of her life in the home that the two had purchased in San Antonio in 2012

but had sold in 2019. The trust agreement did not address Thomas’s interest in the home that he 

and Doolittle had purchased in San Marcos, Texas, in 2019, and in which they had resided until 

his death.1

In November 2022, Doolittle filed a petition for declaratory judgment asking that 

the trial court find that she and Thomas had been informally married from July 5, 2012, until his 

death. The court held a hearing on the petition, at which Doolittle; her brother; members of 

Thomas’s family; Justin’s friend; and Thomas’s ex-wife, Carolyn Thomas (Carolyn), testified. 

A video deposition of Dr. Murray Holcomb, a friend and former student of Thomas’s, was 

admitted at the hearing. The trial court also admitted deeds to the two homes purchased by 

Doolittle and Thomas, marital status affidavits executed by the couple in 2019, the trust 

agreement, Thomas’s death certificate, and a reporter’s record from the July 2022 probate 

hearing on Thomas’s will.

Doolittle testified about the nature of her and Thomas’s relationship. The two met 

at work in 1983 and began dating in 1987 when Thomas, who was “estranged” from Carolyn at 

the time, “left his wife and got his own home for a period of time.” Doolittle and Thomas were 

“attached at the hip”; they worked together, spent their evenings and weekends together, and 

1 Doolittle testified at the petition hearing that “with Covid and [Thomas’s] illness and 

everything else, we didn’t even realize that it didn’t state our current residence in his trust after 

we moved.”
3

“[t]raveled the wor[l]d.” Thomas and Carolyn divorced in January 2011, and Doolittle and 

Thomas agreed to marry around July 2012, shortly before moving to Texas and jointly 

purchasing a home in San Antonio. Doolittle testified that she and Thomas “felt that way for a 

very, very long time” but in 2012 had “said we are husband and wife. We’ve basically been 

acting as husband and wife for a long, long time.” Thomas bought her a wedding ring, which 

she showed the trial court during the hearing.2

After purchasing their home in San Antonio, Doolittle and Thomas lived together 

and “presented [them]selves as [married] to everyone in town.” Asked why he had not referred 

to her as his wife in his 2015 will, she testified that they had both been “very ignorant of the law 

in Texas” and that although they had known “there was such a thing as common law,” Thomas 

might have said that he was single to indicate that they had not been formally married.

In 2019, after Thomas was diagnosed with prostate cancer, he and Doolittle sold 

their San Antonio home and purchased one in San Marcos. The general warranty deed 

conveying the San Antonio property referred to the grantors as “JAMES HENRY THOMAS and 

LOIS KAY DOOLITTLE, husband and wife.”3 As part of the purchasing process for their new 

home, Doolittle and Thomas executed marital status affidavits, in which they swore under oath 

they had been “continuously married” to each other since 2001. Doolittle testified that she had 

been present when Thomas signed his affidavit, that they had not been confused about the 

affidavits’ meaning, that he had been “bad about dates,” and that he might have “mixed up 2001 

and 2011.”

2 The trial court excluded a purported receipt for the ring on hearsay grounds.

3 The 2012 warranty deed for the San Antonio property, which named the grantors 

as “Daniel D. Smith and wife, Kristen I. Smith,” referred to the grantees only as 

“James Henry Thomas and Lois Kay Doolittle.”
4

Doolittle and Thomas continued to live together until his death in March 2021. 

They paid their bills together, shared a strongbox and joint checking and savings accounts, took 

many photographs together, and listed both their names on their checks. She was good friends 

with his immediate relatives, attended two of his family reunions and a “Vietnam reunion” with 

his friends, was his medical power of attorney, and considered his grandson to be hers. She 

referred to Thomas as her husband or spouse, and he referred to her as his wife or spouse. 

However, Justin and Stephanie referred to her as “Ms. Doolittle” and “Lois,” respectively.

Near the end of his life, Thomas asked Doolittle to read his will aloud in Justin’s 

presence. Doolittle testified that Thomas’s cancer had metastasized to his brain, that “his moods 

were going in and out,” that he had been taking a “variety of medications,” and that “he was 

getting demented.” When she noticed that Justin had stated that Thomas was unmarried on his 

death certificate, she called the funeral home to have it changed but was told that only Justin 

could do so. At Thomas’s funeral in April 2021, she represented herself as his wife, thanked 

attendees, and told them “how much Jim loved them.”

Asked on cross-examination about a May 2, 2022 letter from her attorney, in 

which the attorney referred to Doolittle and Thomas’s co-ownership of the San Marcos property 

but did not assert a marital relationship, Doolittle testified that “[a]t the time, . . . this . . . wasn’t 

about establishing a marriage” and that she had been “trying to help pay for some of the taxes 

and things that [she felt] . . . the trust should be paying for.” Similarly, she testified that she had 

not asserted a marital relationship to Thomas during the probate hearing because she had not had 

an attorney present, had not anticipated addressing the trial court, and “didn’t figure th[at] was 

the place [or] time.” At the probate hearing, Doolittle—who was sitting in the gallery—denied 

having an interest in Thomas’s estate other than the San Marcos residence. She agreed that her 
5

informal marriage to Thomas had first been raised in a letter written by her attorney to Justin’s 

attorney on September 1, 2022.

Thomas’s sister, Hermoine Saunders (Hermoine), and her husband, 

Charles Saunders (Charles), testified about their understanding of Doolittle and Thomas’s 

relationship. Hermoine had known Doolittle since Doolittle was hired as Thomas’s secretary. 

Four or five years later, Hermoine learned that Thomas and Doolittle were in a relationship. 

Although Thomas did not introduce Doolittle to Hermoine as his wife, he and Doolittle “held 

themselves out as a married couple . . . after a[ ]while.” By the end of Thomas’s life, Hermoine 

believed that he and Doolittle were informally married and had been for at least a few years. 

When questioned as to how the relationship differed from “an intimate” one or a “partnership,” 

Hermoine testified that the couple had traveled together and that Thomas had bought Doolittle 

“things that a husband would gift a wife.”

Asked if Doolittle and Thomas’s relationship had continued after Thomas’s 2011 

divorce, Charles testified that “it was always with [Doolittle],” that Thomas and Doolittle’s 

relationship “was like husband and wife,” that they lived together as a married couple, and that 

Thomas “was always talking about retiring. He was going to go to Texas and retire with Lois.” 

Charles also testified that Thomas and Doolittle’s relationship had differed from “an intimate 

relationship” because “they always presented themselves as husband and wife and buying a 

house and doing husband-and-wife stuff.” While Charles had not seen Thomas since 2013, he 

had maintained regular phone contact with him and Doolittle.

Thomas’s cousin, Laura Mimms, and her sister, Dr. Brenda Matthews, also 

testified regarding their impressions of Doolittle and Thomas’s relationship. Mimms had known 

Doolittle for over 20 years and used to speak with her and Thomas by phone “[a]ll the time.” 
6

Doolittle showed Mimms an engagement ring given to her by Thomas and stated that “they were 

getting married.” In a phone conversation approximately two or three weeks before he died, 

Thomas asked Mimms to “always be there for Lois, because he knew she would be a widow, and 

[Mimms] was a widow.” Thomas “always alluded to Lois as being his wife” and, when he and 

Doolittle purchased their San Marcos home in 2019, told Mimms that he “wanted his wife to be 

situated and in a home that she would love.” Mimms testified that it “never really came across 

[her] mind that [Doolittle] was not his wife.” Asked to “explain what made their relationship a 

marriage relationship instead of just an intimate relationship,” Mimms referred to the 

commingling of Thomas and Doolittle’s finances, their traveling together, Doolittle’s willingness 

to relocate for him, Thomas’s desire to provide her with a home, and their being “a 

loving couple.”

Matthews testified that she and Thomas had been like brother and sister and had

spoken by phone “[a]ll the time.” She visited Thomas and Doolittle at their home and thought 

that they were married. Thomas referred to Doolittle as his wife and told Matthews, “Lois and I 

are together. We are married.” Shortly before his death, Matthews asked him if she should visit 

“to come be with Lois, your wife,” and he replied, “No, I don’t want you to see me like this.”

Doolittle’s brother, John Richard Graham, testified that he had been good friends 

with Thomas and had known him for around 30 years. Graham considered Thomas to be a 

family member, and on one occasion prior to 2011, Thomas referred to Graham as his 

brother-in-law. Graham testified that he had considered Thomas and Doolittle to be married;

that she had always held herself out as married to Thomas; and that although she may not have 

always said that they were married, Graham did not “always say [he was] married to [his] wife 

either.” Graham also testified that while he did not remember specific instances after 2011 when 
7

Thomas had referred to Doolittle as his wife or spouse, “[t]he relationship is what it is, whether –

I don’t know between intimate and married. To me, it’s hard to differentiate that.”

Thomas’s second cousin, Earl Nix, testified that he was the family historian for

“the Lawrence side of the family – that’s where Justin’s mother come in at.” Thomas met Nix at 

a family reunion but did not represent that he was married. They instead discussed Justin’s 

mother, Carolyn. After the reunion, Nix and Thomas spoke a couple of times about family 

history, but Nix did not recall Thomas stating that he was married to Doolittle. Nix first learned 

of Doolittle when she asked to attend a 2022 family reunion that Nix had planned. She came to 

the reunion and tried “to get [Nix] to accept her into the family.” Nix “never thought she was 

[Thomas’s] wife” but considered her to be “just a friend.”

Brett Hinson, Justin’s friend, testified that he had met Thomas and had known his 

family since Hinson and Justin attended high school together in 1995. Thomas never represented 

to Hinson that he was married. Hinson learned about Doolittle “recently” but had been aware 

that Thomas “was down in Texas with her.”

Carolyn testified about her marriage to Thomas and her knowledge of his 

relationship with Doolittle. Carolyn was married to Thomas for nearly 44 years, and they 

divorced on August 11, 2011. She had “sporadic” contact with him after the divorce, but he 

never represented to her that he was married to Doolittle. To the contrary, he told Carolyn “on 

more than one occasion he was not married.” When they danced at their daughter’s birthday 

party in 2018, he kissed Carolyn “[o]n the side of the mouth,” which was not “unusual behavior” 

or “an unusual display of affection” from him. Although they did not discuss his life in Texas, 

Carolyn testified that he would have told her if he had remarried. She did not know that he had 

lived with Doolittle since 2012 but when she heard a woman’s voice in the background of a call 
8

with him a few years after their divorce, she suspected that it was Doolittle because “[her] 

husband was not a womanizer, and the only person [she] could think of would have 

been [Doolittle].”

In his video deposition, Dr. Murray Holcomb, who was Thomas’s student in 

medical school and later his friend for 30 years, testified about his observations regarding 

Doolittle and Thomas’s relationship. Holcomb testified that he met Thomas around 1985, that 

Thomas divorced Carolyn in approximately the late 1980’s or early 1990’s, and that it became 

known after 1991 that Thomas and Doolittle were a couple. After Thomas retired, he and 

Holcomb spoke “not infrequently” about family. Thomas was “a little more guarded” than 

others when discussing family; he did not often refer to his children but would sometimes talk 

about his parents, his sister, or Doolittle. He never mentioned marrying Doolittle, and they did 

not refer to each other as “husband” or “wife.” However, they used “collective terms” when 

speaking about their lives.

Holcomb testified that he did not know what it meant to “live together as husband 

and wife.” Asked whether Thomas and Doolittle held themselves out to the public as married, he 

testified, “I would think that if you saw them, you would maybe make that assumption, even 

though they didn’t verbally say that.” Doolittle and Thomas were “always together,” and 

Holcomb could not think of “a time in the last ten years when [he] saw Dr. Thomas when [he] 

didn’t see Lois.” Doolittle cared “almost constantly” for Thomas after he entered hospice, and 

he “relied on her completely and constantly and . . . always wanted her there, wanted to talk to 

her, needed her there, and she was an integral part of his life and decision-making and what he –

who he wanted around him and to help take care of him.”
9

Justin testified on his own behalf and contradicted much of Doolittle’s and other 

witnesses’ testimony. According to Justin, Thomas and Doolittle’s relationship began in 

approximately 2012. Before Thomas moved to Texas that year, he and Justin had a conversation 

about marriage in which Thomas stated that he did not plan on remarrying. Thomas described 

Doolittle as “simply just a good friend.” Justin testified that he did not believe that Thomas’s 

signature on his 2019 marriage status affidavit was in Thomas’s handwriting.

Justin agreed that Thomas had been on strong medications near the end of his life 

but testified that he had eventually come off of the medications and had been “very equipped to 

have . . . a coherent conversation.” Thomas’s caregiver had not been Doolittle but rather “Jude” 

and another person whose name Justin could not remember. During Justin’s last visit, he and 

Thomas discussed Thomas’s will on multiple occasions. Shortly before his death, Thomas made 

Doolittle read the will aloud to Justin. When she began coughing, Justin had offered to read the 

will instead, but Thomas had told Justin to stop and stated, “No, give it back to her.” Afterward, 

Thomas and Justin spoke privately and Thomas—referring to the will—stated, “I want to make 

sure that nothing had changed in these documents.”

Justin testified that Doolittle had not claimed to be Thomas’s wife until after he 

had died. She drafted a version of Thomas’s obituary asserting that they were married, and 

Justin told her, “My dad was not married to you. I know this for a fact, and he has passed, and I 

consider it to be extremely disrespectful.” Nevertheless, he invited her to speak at Thomas’s 

funeral, but she refused. She only claimed to be Thomas’s spouse after Justin refused to have the 

trust “pay for half of the expenses of the house.”

Following the hearing, the trial court granted Doolittle’s petition without making 

findings of fact or conclusions of law. The court further ordered that Thomas and Doolittle “are 
10

to be considered married under Texas Family Code Section 2.401,” that Doolittle is Thomas’s 

surviving spouse, and that Doolittle possesses a life estate in the San Marcos property. See Tex. 

Fam. Code § 2.401 (governing proof of informal marriage). This appeal followed.

DISCUSSION

We construe Justin’s brief to raise a single issue challenging the legal and factual 

sufficiency of the evidence supporting the existence of an informal marriage between Thomas 

and Doolittle.

4

I. Standard of Review

A trial court’s determination regarding the existence of an informal marriage is 

subject to review for legal and factual sufficiency. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 

1993). The existence of an informal marriage is a fact question, and the party seeking to 

establish the existence of the marriage at trial bears the burden of proving it by a preponderance 

of the evidence. Burden v. Burden, 420 S.W.3d 305, 308 (Tex. App.—Texarkana 2013, no pet.).

A party who challenges the legal sufficiency of an adverse finding on which it did 

not bear the burden of proof at trial must demonstrate on appeal that no evidence supports the 

adverse finding. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per 

curiam). In reviewing for legal sufficiency, “we view the evidence in the light most favorable to 

the . . . finding, crediting favorable evidence if a reasonable fact-finder could, and disregarding 

contrary evidence unless a reasonable fact-finder could not.” Gonzales v. Maggio, 500 S.W.3d 656, 

4 Justin, in two issues, asks that we “reverse the Trial Court’s declaration of a 

common-law marriage and render judgment because the evidence is legally insufficient” or, 

alternatively, “reverse the Trial Court’s declaration of a common-law marriage and remand 

because the evidence is factually insufficient.”
11

662 (Tex. App.—Austin 2016, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 807 

(Tex. 2005)). We indulge every reasonable inference that would support the challenged finding. 

Abila v. Miller, 683 S.W.3d 842, 846 (Tex. App.—Austin 2023, no pet.) (citing City of Keller, 

168 S.W.3d at 822). We will sustain a no-evidence challenge only if (1) evidence of a vital fact 

is absent, (2) rules of law or evidence bar us from giving weight to the only evidence offered to 

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or 

(4) the evidence conclusively establishes the opposite of the vital fact. Pike v. Texas EMC 

Mgmt., LLC, 610 S.W.3d 763, 783 (Tex. 2020). More than a scintilla of evidence exists to 

support a finding when the evidence enables reasonable and fair-minded people to differ in their 

conclusions. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015).

When a party challenges the factual sufficiency of an adverse finding on an issue 

on which he did not have the burden of proof, he must demonstrate that the finding is “so 

contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly 

unjust.” Wichita County v. Environmental Eng’g & Geotechnics, Inc., 576 S.W.3d 851, 862 

(Tex. App.—Austin 2019, no pet.) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). In 

reviewing for factual sufficiency, “we examine the entire record, considering the evidence in 

favor of and contrary to the challenged finding.” Id.

Under either standard, the trier of fact “is the sole judge of the credibility of 

witnesses and the weight to be given their testimony.” Altice v. Hernandez, 668 S.W.3d 399, 

410 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (citing Golden Eagle Archery, Inc. 

v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)). When faced with conflicting evidence, the trier 

of fact “may choose which witnesses to believe and may resolve inconsistencies in any 

witness’[s] testimony.” Burden, 420 S.W.3d at 308 (citing McGalliard v. Kuhlmann, 
12

722 S.W.2d 694, 697 (Tex. 1986)). Where, as here, the trial court did not make findings of fact

and need not have done so, we imply all findings that are necessary to support its ruling and are 

supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 

2002). Because this appellate record includes the reporter’s and clerk’s records, the trial court’s 

implied findings are not conclusive and may be challenged for legal and factual sufficiency. 

See id.

II. Existence of an Informal Marriage

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

be married, (2) live together in Texas as husband and wife after the agreement, and (3) represent 

to others that they are married.” In re C.M.V., 479 S.W.3d 352, 360 (Tex. App.—El Paso 2015, 

no pet.) (citing Tex. Fam. Code § 2.401(a); Russell, 865 S.W.2d at 932; Burden, 420 S.W.3d at

308); see Ex parte Threet, 333 S.W.2d 361, 364 (Tex. 1960) (orig. proceeding) (characterizing 

third element as “holding out to the public that the couple are husband and wife”). All three 

elements must be satisfied concurrently for an informal marriage to exist. In re C.M.V., 

479 S.W.3d at 360 (citing Burden, 420 S.W.3d at 308; Eris v. Phares, 39 S.W.3d 708, 714 (Tex. 

App.—Houston [1st Dist.] 2001, pet. denied)). The circumstances of each case must be 

determined from the facts of that case. Id. (citing Russell, 865 S.W.2d at 933).

A. Agreement

“To establish that the parties agreed to be husband and wife, it must be shown that 

they intended to create an immediate and permanent marriage relationship, not merely a 

temporary cohabitation that may be ended by either party.” Burden, 420 S.W.3d at 308. Proof 

of an agreement to be married may be made by circumstantial evidence or conduct of the parties. 
13

In re O.R.M., 559 S.W.3d 738, 744 (Tex. App.—El Paso 2018, no pet.). “The testimony of one 

of the parties to the marriage constitutes some direct evidence that the parties agreed to be 

married.” Small v. McMaster, 352 S.W.3d 280, 283 (Tex. App.—Houston [14th Dist.] 2011, pet. 

denied) (citing Eris, 39 S.W.3d at 714). Further, evidence of cohabitation and representations of 

marriage to others are circumstantial evidence of an agreement to be married. In re C.M.V., 

479 S.W.3d at 360 (citing Russell, 865 S.W.2d at 933).

Doolittle testified that she and Thomas agreed to be married in July 2012. Her 

testimony is more than a scintilla of direct evidence that the two agreed to be married, and we 

conclude that evidence of an agreement was therefore legally sufficient. See Eris, 39 S.W.3d at 

714 (citing Collora v. Navarro, 574 S.W.2d 65, 70 (Tex. 1978); In re Estate of Giessel, 

734 S.W.2d 27, 32 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.)).

Additional evidence of an agreement included Doolittle’s testimony that Thomas 

bought her a wedding ring; the couple’s approximately nine-year cohabitation and joint purchase 

of two homes; the 2019 warranty deed for the San Antonio property, which referred to Thomas 

and Doolittle as “husband and wife”; the 2019 marital status affidavits swearing that they had 

been married since 2001; the commingling of their finances; Thomas’s providing for Doolittle in 

his trust; his giving her medical power of attorney and designating her as successor trustee and 

successor executor; her serving as his primary end-of-life caregiver; his referring to Graham as 

his brother-in-law; and testimony from Doolittle, Mimms, and Dr. Matthews that Thomas 

referred to Doolittle as his wife. Evidence contradicting an agreement included Thomas’s 2015 

will, which recited that he was not married; his asking Justin to read the will aloud to Doolittle in 

2021; Doolittle’s statement at the probate hearing that she had no interest in Thomas’s estate 
14

other than the San Marcos property5; and testimony from various witnesses at the petition 

hearing that Thomas did not refer to Doolittle as his wife or spouse, stated that he was 

unmarried, or did not affirmatively represent that he was married.

Although Justin argues that the 2019 marital status affidavits lack probative value 

because Thomas and Carolyn were still married in 2001—when the affidavits averred that the 

informal marriage began—the trial court could have found credible Doolittle’s testimony that 

Thomas may have intended to write 2011, the year he and Carolyn divorced. See Burden, 

420 S.W.3d at 308.

Moreover, even if the trial court believed that Thomas intended to attest that his 

marriage to Doolittle began in 2001, his affidavit would still constitute evidence of an agreement 

to be married. It is true that “[i]f an impediment to the creation of a lawful marriage between the 

parties exists, as when one is married to another, there can be no common law marriage, even if 

all three elements are proven.” Ballesteros v. Jones, 985 S.W.2d 485, 490 (Tex. App.—San 

Antonio 1998, pet. denied); see Tex. Fam. Code § 6.202(a) (“A marriage is void if entered into 

when either party has an existing marriage to another person that has not been dissolved by legal 

action or terminated by the death of the other spouse.”). However, when the evidence shows that 

the agreement continued beyond the removal of the impediment, the agreement becomes valid 

and effectual as of the time of the removal. See Tex. Fam. Code § 6.202(b) (“The later marriage 

that is void under this section 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 

5 Justin’s assertion that Doolittle “admitted” during the probate hearing that she was only 

in a “partnership relationship” with Thomas is incorrect. Rather, Justin’s attorney represented to 

the probate court that Thomas and Doolittle “[w]ere not married but [were] in [a]

partnership relationship.”
15

themselves to others as being married.”); Ballesteros, 985 S.W.2d at 490 (finding “some 

evidence of the required agreement” where “the parties lived together as husband and wife and 

represented themselves to others as being married after Manetou’s wife died”); Howard 

v. Howard, 459 S.W.2d 901, 904–05 (Tex. App.—Houston [1st Dist.] 1970, no writ) (inferring 

agreement “to presently become husband and wife” where after man’s divorce, he and his 

partner “continued to cohabit and to hold themselves out to the public as husband and wife”); 

Consolidated Underwriters v. Kelly, 15 S.W.2d 229, 230 (Tex. [Comm’n Op.] 1929, jdgmt 

adopted) (concluding that couple’s “continued living together as husband and wife” after death 

of woman’s legal husband “bespeaks a continued intention and agreement, day by day, to be 

husband and wife”).

Because the affidavits were executed after Thomas’s divorce, they constitute 

evidence of a valid agreement to be married following the removal of the legal impediment. The 

evidence also shows that after the 2011 divorce, Thomas and Doolittle continued to live together 

and represent themselves as married. From this record, we cannot say that the evidence of an 

agreement to be married was so weak that the trial court’s finding was clearly wrong and 

manifestly unjust. See Wichita County, 576 S.W.3d at 862. To the extent that the silence of the 

trust agreement and San Marcos warranty deed as to Thomas’s marital status is evidence of no 

agreement—as Justin asserted—our conclusion is unchanged.

B. Cohabitation

The second element of an informal marriage is that the parties live together in 

Texas as husband and wife after the agreement. See Russell, 865 S.W.2d at 932; In re C.M.V., 
16

479 S.W.3d at 360; Burden, 420 S.W.3d at 308. “Cohabitation need not be continuous for a 

couple to enter into a common-law marriage.” Small, 352 S.W.3d at 284.

Justin argues that because “there is no evidence that [Thomas] agreed to be 

married to [Doolittle], they could not have lived together as husband and wife.” Having 

concluded above that there was sufficient evidence of an agreement to be married as early as 

2011, however, we conclude that the uncontradicted evidence of their subsequent cohabitation 

until Thomas’s death was legally and factually sufficient to support the trial court’s finding that 

the second element of informal marriage was satisfied. Insomuch as Justin contends that 

Thomas and Doolittle did not live together as husband and wife because they did not present 

themselves as such, his contention is addressed below.

C. Representation/Holding Out

To satisfy this element of informal marriage, “parties must, in Texas, have 

represented to others that they were married.” Eris, 39 S.W.3d at 714 (citing Tex. Fam. Code 

§ 2.401(a)(2)). The statutory requirement of “represented to others” in subsection 2.401(a)(2) is 

synonymous with “holding out to the public.” Id. at 714–15 (citing Winfield v. Renfro, 

821 S.W.2d 640, 648 (Tex. App.—Houston [1st Dist.] 1991, writ denied); Giessel, 734 S.W.2d 

at 30). “Whether the evidence is sufficient to establish that a couple held themselves out as 

husband and wife turns on whether the couple had a reputation in the community for being 

married.” Small, 352 S.W.3d at 285. Proving such a reputation “requires evidence that the 

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

community viewed them as married.’” Id. (quoting Danna v. Danna, No. 05-05-00472-CV, 

2006 WL 785621, at *2 (Tex. App.—Dallas Mar. 29, 2006, no pet.) (mem. op.)).
17

The element of holding out requires more than occasional references to each other 

as “wife” and “husband.” Smith v. Deneve, 285 S.W.3d 904, 910 (Tex. App.—Dallas 2009, no 

pet.). However, representation may be proven “by conduct and actions of the parties. Spoken 

words are not necessary to establish representation as husband and wife.” Eris, 39 S.W.3d at 715 

(internal citations omitted). An informal marriage can be “secret from some persons,” Winfield, 

821 S.W.2d at 651, but both parties must represent themselves as married, Small, 352 S.W.3d 

at 285.

Viewed in the light most favorable to the trial court’s ruling, the record contains 

ample evidence that the parties represented themselves as married. As noted above, Thomas 

purchased for Doolittle a wedding ring, which Mimms—although she remembered it to be an 

engagement ring—recalled seeing. Thomas and Doolittle lived together for over nine years in 

two homes that they jointly purchased. Cf. Ex parte Threet, 333 S.W.2d at 364 (identifying 

publicly sharing common residence as proof of holding out). The couple referred to themselves 

as married in both their 2019 affidavits and the 2019 warranty deed, which was publicly filed. 

Cf. Small, 352 S.W.3d at 286 (“Murriah admitted that she has no documents in which she 

referred to Jack as her husband.”). Mimms testified that Thomas and Doolittle “had their 

finances together,” and Doolittle testified that she and Thomas shared a strongbox and joint 

checking and savings accounts. Cf. id. (“Murriah did not . . . establish any joint bank accounts 

with Jack.”); Ex parte Threet, 333 S.W.2d at 363 (“No charge accounts were opened in the joint 

name.”). Thomas designated Doolittle as successor trustee for his living trust—in which he 

provided her a monthly allotment after his death and attempted to secure her living 

arrangements—and as successor executor of his estate. He gave her medical power of attorney, 
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and she was his primary caregiver near the end of his life, as witnessed by both Dr. Holcomb 

and Graham.

Charles, Thomas’s brother-in-law, testified that Thomas “was always talking 

about retiring. He was going to go to Texas and retire with Lois.” Doolittle testified that she and 

Thomas referred to each other as husband and wife, that she was good friends with his 

immediate family and attended his family reunions, that she represented herself as his spouse at 

his funeral, and that she attended a “Vietnam reunion” with him and his friends. Thomas’s 

sister, Hermoine, testified that he and Doolittle “h[e]ld themselves out as a married couple” and 

“behave[d] in that certain way as a married couple.” Hermoine believed that they were married 

by the end of Thomas’s life. Charles also had the impression that Thomas and Doolittle were 

married and testified that they “always presented themselves as husband and wife and buying a 

house and doing husband-and-wife stuff.” Mimms, Thomas’s cousin, testified that he “[a]lways” 

referred to Doolittle as his wife and “always alluded to Lois being his wife.” When calling to 

say goodbye to Mimms, he asked that she care for Doolittle because they would both be 

“widow[s].” Dr. Matthews likewise testified that Thomas referred to Doolittle as his wife and 

that he had said, “Lois and I are together. We are married.” Graham, Doolittle’s brother, 

considered her and Thomas to be married and testified that on one occasion, Thomas referred to 

him as his brother-in-law. Graham also testified that Doolittle “always h[e]ld herself out as 

married to . . . Thomas.” Dr. Holcomb, a witness for Justin, testified that both Thomas and 

Doolittle used “collective terms” when speaking of their lives and that they were “always 

together.” Asked whether they held themselves out to him or the public as husband and wife, 

Holcomb testified, “I would think that if you saw them, you would maybe make that assumption, 
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even though they didn’t verbally say that.” He also testified that the couple engaged in 

“generally intimate behavior.”

Against this evidence, Justin sets testimony from himself, Nix, Carolyn, and 

Hinson that Thomas and Doolittle did not represent themselves as married and did not appear to 

be. Justin also notes that the trust agreement and 2019 special warranty deed were silent as to 

Thomas’s marital status and that Thomas’s 2015 will, which he made Doolittle read aloud to 

him, recited that Thomas was not married. Although Justin places particular importance on the 

infrequency with which Thomas referred to Doolittle as his wife and the fact that several people 

were unaware of the relationship, an informal marriage may be represented through conduct as 

well as words and may be kept secret from certain persons. See Eris, 39 S.W.3d at 715; 

Winfield, 821 S.W.2d at 651.

In addition, there was evidence that Hinson, Carolyn, and Nix had either distant or 

circumscribed relationships with Thomas. Hinson, who was Justin’s friend, testified in 2021 that 

he had only learned of Doolittle “recently,” that he had spoken to Thomas a couple of times 

while working out with Justin in 2020, and that he did not have conversations with Thomas 

about his private life. Nix, who was primarily interested in researching Carolyn’s side of the 

family, met Thomas once and spoke with him two or three times over a period of eight years. 

Nix testified that he was not sure if Thomas was aware that he was compiling a family history 

and that he did not know if Thomas would have told him that he was married because Nix 

“didn’t know him that well to get into his personal business.” And although Carolyn testified 

that Thomas would have told her if he had remarried and that he had told her on multiple 

occasions that he was not married, she “didn’t pry into his business” or “inquire into his personal 

matters.” She explained that “[w]hatever he was doing in Texas, [she did]n’t feel was really 
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[her] business.” Indeed, Carolyn testified that she had not known that Thomas, whom she 

referred to as her “husband,” and Doolittle had lived together for nine years.

Justin asserts that Small, a case from our sister court, provides guidance. See 

352 S.W.3d at 286–87. We find that case readily distinguishable, however. In Small, all the 

evidence for the existence of an informal marriage came from close acquaintances of only one of 

the parties. Id. at 286. The parties did not establish a joint bank account, and the proponent of 

the informal marriage testified that she had no documents referring to the other party as her 

husband, that she would always represent on forms that she was single because her purported 

husband “request[ed] that she never fill out any document as ‘married,’” that he in fact wanted to 

conceal the marriage, that he refused to represent that they were married even when it meant that 

she lost her health insurance after being hospitalized, that he had relationships with other women 

throughout their purported marriage, and that she signed the memorial book at his funeral under 

the “Relatives and Friends” section. Id. at 286–87.

We conclude that the evidence in this case supporting the trial court’s finding that 

Thomas and Doolittle held themselves out as married amounted to more than a scintilla and that 

the court’s finding was not so contrary to the overwhelming weight of the evidence as to be 

clearly wrong and manifestly unjust. See Pike, 610 S.W.3d at 783; Wichita County, 576 S.W.3d 

at 862. Because the evidence of each element of an informal marriage was legally and factually 

sufficient, the trial court did not err by granting Doolittle’s petition for declaratory judgment. 

We overrule Justin’s sole issue.
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CONCLUSION

Having overruled Justin’s only issue on appeal, we affirm the trial court’s order 

granting the petition for declaratory judgment.

__________________________________________

Rosa Lopez Theofanis, Justice

Before Chief Justice Byrne, Justices Smith and Theofanis

Affirmed

Filed: October 4, 2024