Garrett v. Burris, COA12-45, filed on December 4, 2012 is a majority opinion of a divided panel of the North Carolina Court of Appeals. The opinion addresses the sufficiency of the trial court's weighing of the evidence required for recognition in North Carolina of a valid common law marriage alleged to have been entered into in a state recognizing such marriages (Texas). The majority opinion notes with appropriate citation that it is obligated to apply the substantive law of Texas in reviewing the issue of the validity of the alleged common law marriage and to apply North Carolina law with respect to the procedural issue of the sufficiency of the trail court's findings and conclusions of law. The dissenting Judge suggests in his separate opinion that the trial court and the majority Judges may have considered evidence of actions of the parties after the point in time that the facts as reported suggest that the marriage may have been established under Texas law. The analysis in the dissenting opinion seems to be the preferable view in light of the Texas cases cited therein. These cases appear to be controlling with respect to the timing of the establishment of an alleged common law marriage and as to whether the trial court may consider evidence of actions of the parties after the time that the requisite facts exist establishing a common law marriage in Texas.

The plaintiff emigrated from Turkey to the United States, settled in Texas, married, divorced and subsequently began living with the defendant. The facts as reported state that the plaintiff was reluctant to live with the defendant while unmarried. The defendant informed her that common law marriage in Texas was equivalent to being married. Subsequently, "they often introduced themselves socially as 'husband and wife' and even bought rings to memorialize their 'marriage.' The parties moved to North Carolina in 2003 and continued to refer to one another in public as husband and wife."

The plaintiff subsequently filed a complaint for divorce alleging a common law marriage, separation and asserting claims for post separation support, alimony, an equitable distribution of marital property, and absolute divorce. The defendant filed an answer and counterclaim asking that the complaint be dismissed for failure to state a claim "as the parties . . . are not now, nor have they ever been married in any state, be it common law or otherwise." The trial court denied the plaintiff's claim for divorce, "concluding that Plaintiff had failed to meet her burden in proving that the parties had entered into a common law marriage while living in Texas."

The question before the Court of Appeals was whether the trial court's conclusion of law that there was there was no common law marriage between the parties under Texas law was supported by its findings of fact which were not challenged on appeal. The plaintiff argued that the trial court erred as a matter of law in so concluding because there was "'overwhelming un-rebutted evidence supporting the finding of a valid common-law marriage.'"

The opinion's analysis initially summarizes the law of North Carolina with respect to common law marriages noting that they cannot be created in North Carolina and citing State v. Wilson, 121 N.C. 650, 28 S.E. 416 (1897) and State v. Samuel, 19 N.C. 177 (1836) for the rule. The court observes that "North Carolina courts, "'however, will recognize as valid a common law marriage "if the acts alleged to have created it took place in a state in which such a marriage is valid."' State v. Alford , 298 N.C. 465, 473, 259 S.E.2d 242, 247 (1979) (citation omitted)." The Court recognized with appropriate citation that Texas recognizes common law marriages and that to prove a valid common-law, under Texas law, the following three elements must be established by a preponderance of the evidence:

(1) An agreement by the parties to be married;

(2) The parties living together in Texas as husband and wife after the agreement; and

(3) The parties representing to others in Texas that they are married. (Citations omitted).

The opinion observes that the trial court determined that the plaintiff failed to establish the first element of her claim, concluding that "'Plaintiff ha[d] failed to prove by the preponderance of the evidence that while in the State of Texas, both parties had a present agreement to be Husband and Wife.'" The opinion then sets out the trial court's findings of fact in reaching this conclusion which we include to assist in comparing the views of the dissenting Judge in this appeal.

11. Plaintiff and Defendant began dating in approximately October of 1999, and Defendant moved into plaintiff's home in September or October of 2000, after Plaintiff's divorce from Brett Garrett.

12. Plaintiff told Defendant it would not be honorable to live together unless married. Defendant told Plaintiff that a common law marriage in Texas was the same as marriage so that it would be appropriate to live together. Each bought a ring to show that they were married. The parties lived together in Texas in the home of the plaintiff until they moved to North Carolina in 2003.

13. In Texas, the parties introduced themselves socially as Husband and Wife and referred to each other in public as Husband and Wife. The parties continued this behavior in North Carolina. The defendant's testimony otherwise is not credible. However, even according to the plaintiff, when "legal" documents were being generated, the parties would tell the preparers that the parties were unmarried.

14. The relevance of the actions of the parties in North Carolina is limited to informing the court of the intent of the parties while in Texas.

15. The remaining element of an informal marriage under the laws of Texas concerns whether the actions of the parties outlined above were pursuant to a mutual agreement between the parties presently to be husband and wife at the time of the agreement. In addition to the actions of the parties outlined above, the court finds [the] following facts which are conflicting with respect to this issue:

a. The parties never had a formal or informal ceremony. The parties never exchanged vows. They did not have joint bank accounts or joint checking accounts.

b. Plaintiff never officially assumed the surname of the Defendant, although she used his surname in public and on unofficial documents.

c. On May 2, 2003 a Release of Lien was executed with respect to a note dated December 22, 2000. The maker of the note was Hulya Garrett, "an unmarried woman."

d. The parties filed a federal tax return due April 2002 as "married filing joint return."

e. In Texas, Plaintiff kept her real property in her sole name until she sold the property in 2003. With the proceeds, she purchased property in North Carolina in her sole name as reflected in a deed recorded 2/20/04 in Iredell County Book 1526 Page 1604 in which Plaintiff is listed as the Grantee: "Hulya Garrett, unmarried."

f. After moving to North Carolina, Plaintiff told Kay Webster, a friend of the Defendant, that Plaintiff and Defendant had no intention to marry because there were too many issues between them.

g. On 12 August 2005, Plaintiff conveyed to Defendant real estate in North Carolina. The deed which plaintiff signed lists Plaintiff as "unmarried." This deed was recorded in Book 1672 Page 407, Iredell County Registry.

h. On April 10 2007, Defendant signed an official wood-destroying insect information report in which the buyers were listed as Chuck and Hulya Burris.

i. On 27 April 2007, Plaintiff and Defendant caused to be recorded a deed in Book 22172 Page 709 Mecklenburg County Registry listing both parties as "unmarried" and acquiring the property as "tenants-in-common."

The plaintiff argued that these findings principally supported her contentions. The majority notes that "it is true that some of the trial court's findings tend to support the existence of a present agreement between the parties" but further observed that "it is likewise true that others tend to undermine such an agreement." Determining that the facts were in conflict on the issue of the parties' intent to form an agreement, the court analyzed Texas law in order to resolve the issue. Its analysis suggests that Texas' appellate courts, much as North Carolina's, will not substitute their judgment for the judgment of the trier of fact where there is substantial evidence before the court to support either contention. As a result of this conclusion the trial court's judgment was affirmed by the majority.

Judge Beasley dissented in a separate opinion that concluded that the trial court's findings clearly established that a marriage existed under Texas law. The dissenting opinion observes that the unchallenged findings of fact established that all of the requirements for common law marriage under Texas law existed prior to the parties moving in together. Because this case turned on the Court of Appeals' affirmation of the trial court's application of the law to the facts and because we view the dissenting Judge's application of the facts as reported to be the more correct, we include that opinion unedited.

The majority opinion correctly lays out the law affecting the outcome of this case. The trial court found that the parties lived together and held themselves out to others as married, thereby satisfying two of the three requirements of common law marriage under Texas law. See Nguyen v. Nguyen , 355 S.W.3d 82, 88 (Tex. App. 2011)(citing Tex. Fam. Code Ann. § .401(a)(2)(2006)). The court only took issue with the element of agreement to be married. See id. As both the trial court and the majority opinion observe, Texas case law has found that these three elements must occur concurrently for a marriage to exist. Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App. 1987). In addition, and not in contrast, the Texas Code states that the agreement should precede the cohabitation and representations of marriage. Tex. Fam. Code Ann. § 2.401 (West 2011) ("[T]he man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.").

In Finding of Fact Number 12, the trial court found Plaintiff told Defendant it would not be honorable to live together unless married Defendant told Plaintiff that a common law marriage in Texas was the same as marriage so that it would be appropriate to live together. Each bought a ring to show that they were married. The parties lived together in Texas in the home of the plaintiff until they moved to North Carolina in 2003.

These findings demonstrate that the parties intended to be married. The trial court explicitly found that the parties conditioned their living together on obtaining the status of "married" when it found Plaintiff refused to live with Defendant without being married and Defendant assured her that common law marriage was the same as "getting married." This is an express agreement and the trial court explicitly found that the parties, after this conversation, took all of the steps necessary to satisfy common law marriage requirements when they moved in together and bought the rings. See Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. 2001) (finding direct legal evidence of an agreement where one party stated it was not necessary "to be married to be married" and factual sufficiency where this statement led to "cohabitation and representations [of marriage,]" thereby creating an inferred agreement to be married). It is inapposite to conclude that the parties did not agree to be married by common law in light of Finding of Fact Number 12.

Both the majority opinion and the trial court draw their conclusion in reliance on acts and omissions that occurred after (emphasis in the original) the events in Finding of Fact Number 12. The majority opinion stresses the importance of these later findings as "probative in discerning the parties' intent to form an agreement" and cites Texas law to show that where there is any evidence supporting the lower court's decision, it must be upheld. While I agree that Texas law places great deference with the trial courts in the event of conflicting evidence, see Rosales v. Rosales, 377 S.W.2d 661, 664 (Tex. App. 1964), I see no conflicting evidence in this case.

In Texas, the instant that all three requirements of common law marriage are satisfied and concurrent, a marriage forms. See Bolash, 733 S.W.2d at 699 (requiring concurrence). Once a common law marriage forms under the laws of Texas, it is treated in the same regard as any formal marriage and may only be dissolved by an act of the court or death. Estate of Claveria v. Claveria , 615 S.W.2d 164, 167 (Tex. 1981). "Once the marriage exists, the spouses' subsequent denials of the marriage, if disbelieved, do not undo the marriage." Id. (citing De Beque v. Ligon, 292 S.W. 157 (Tex. Comm'n App. 1927).

The later findings relied on by the trial court and the majority opinion does not conflict with this finding. They instead point to changes in behavior or intent, but are necessarily irrelevant because the marriage was already formed based on the express finding by the trial court. See, e.g., Reilly v. Jacobs, 536 S.W.2d 406, 408 (Tex. Civ. App. 1976) (finding evidence that husband opened bank accounts in his sole name, thus not shared, and that wife did not change her name did not nullify the existence of a common law marriage). Any act or behavior that followed the events recounted in Finding of Fact Number 12 is irrelevant to the issue before us because the marriage could not be terminated by a mere change of heart or regret. Because the events as found in Finding of Fact Number 12 occurred in Texas and satisfy the requirements of common law marriage under Texas law, this Court is bound to recognize the existence of the marriage. State v. Alford, 298 N.C. 465, 473, 259 S.E.2d 242, 247 (1979).

It may be argued that the distinctions in the two opinions are not significant, but it can have a great significance in evaluating the state of title to real estate. If a valid marriage has been entered into, the non title spouse has a marital right that must be addressed in order to convey marketable title. See Taylor v. Bailey, 49 N.C. App. 216, 219 (1980). North Carolina favors a presumption of validity of the marriage as a public policy doctrine. See Mussa v. Palmer-Mussa, 719 S.E.2d 192 (N.C. App., 2011)