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Winfield v. Renfro - 821 S.W.2d 640 (Tex. App. 1991)


In a common-law marriage, the statutory requirement of "represented to others" is synonymous with the judicial requirement of holding out to the public. Holding out may be established by conduct and actions of the parties. Spoken words are not necessary to establish representation as husband and wife.


Sandra Renfro brought an action against David Winfield to establish a common-law marriage, and the trial court held that a common-law marriage existed. Winfield contended that Renfro did not secure a finding on each essential element of her claim of common-law marriage, and specifically alleged that the question and instruction submitted to the jury did not instruct them that both parties must represent to others in Texas that they were married. The jury was asked: “Do you find from a preponderance of the evidence that Petitioner and Respondent entered into an informal or common law marriage on or about April 11, 1982?” Moreover, the jury was instructed that the elements of an informal or common law marriage were: (i) A mutual agreement to be husband and wife; (ii) And, after this agreement they lived together in this state as husband and wife; (iii) And, represented to others that they were married. Except for the omission of the word "there," the instructions tracked the statutory language in § 1.91 of the Texas Family Code. Except for the substitution of the phrase lived together in "this state" for lived together "in Texas" and the omission of the word "there," the jury question and the instructions stated the elements necessary to establish a common-law marriage based on the suggested charge in 5 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES PJC 201.04a (1989). Winfield objected to the omission of the word "there" from the charge, as most of the time Winfield and Renfro spent together was outside of the state of Texas.


Was the omission of the word “there” or the phrase “in Texas” from the jury instruction an erroneous jury instruction, which could have resulted to an improper verdict?




The Court reversed the judgment, finding that the omission of the word "there" or the phrase "in Texas" from the jury instruction created an erroneous instruction constituting error that was reasonably calculated to cause and probably did cause the rendition of an improper verdict. Additionally, the court found that the evidence was factually insufficient to support the holding out element of common-law marriage. The Court determined that it was against the great weight and sufficiency of the evidence to conclude that the parties held themselves out as married in Texas on or about the date of their alleged marriage. The Court remanded the cause for a new trial.

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