This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 26, 1996. With respect to the single issue before him, the hearing officer held that the claimant beneficiary (hereinafter “claimant”) did not establish that she had a marital relationship with the deceased, (hereinafter “deceased”), who had no beneficiaries under the 1989 Act. He further held that an order declaring informal marriage and heirship, issued by the probate court of Tarrant County, Texas, was based upon an agreement between the claimant and deceased’s mother to divide deceased’s estate, which agreement included claims pending before the Texas Workers’ Compensation Commission (Commission), is contrary to the 1989 Act, and is not binding upon the Commission.
In her appeal, the claimant contends that the hearing officer erred in allowing testimony as to her common-law marital status because the doctrine of collateral estoppel applies. As to that doctrine, she also argues that the hearing officer should not have considered the fact that the Commission’s Subsequent Injury Fund (SIF) and the carrier were not parties to the proceedings before the probate court. She also points to evidence in support of her contention that she and the deceased were married at the time of his death, and argues that the hearing officer’s contrary determination is supported by insufficient evidence. In this regard, she also takes issue with statements made by the hearing officer in his statement of the evidence.
The carrier responds that the facts of an informal marriage were not litigated before the probate court; it also argues that the SIF and carrier were not parties to the claimant’s action to determine heirship, so that identity of parties does not exist for purposes of the collateral estoppel argument. Nor, it argues, was the fact of the informal marriage fairly and fully litigated. It contends that the evidence supports the hearing officer’s determination that a common-law marriage did not exist.
DECISION
Affirmed.
The claimant and the deceased, who died in a work-related accident on _____, were coworkers who began living together in 1992, and had planned to be married on January 1, 1996. It was the claimant’s position that the two were married informally and were planning a delayed, formal ceremony only for their family and also because the claimant did not want to change her name while her son was still in school nor jeopardize child-support payments. She stated at the CCH that, at the time they moved in together, “we agreed at that point that we were–that we would be married.”
Numerous friends and family members testified and/or gave statements concerning the nature of the two individuals’ relationship. There was testimony that claimant and deceased traveled together for business and registered at hotels as “Mr. and Mrs.” and that some friends referred to claimant using deceased’s last name. There was also testimony that deceased referred to claimant as “the wife” or “my wife” and that claimant had referred to deceased as “my husband.” However, there was other testimony that the two referred to each other as “my fiance” and even that they had denied that they were married already. The claimant wore a ring, described as a combined wedding/ engagement ring, that had undisputedly been given her by deceased. However, the claimant acknowledged that the two had a joint credit account but no joint checking account and that they had filed tax returns separately. Claimant testified that she owned the house in which they lived, but that deceased shared in paying the bills; copies of cancelled checks for electric bills were included in evidence.
Deceased’s mother testified that she made the funeral arrangements, which were paid for by the family with no contribution from claimant. She also said, and an affidavit from the funeral home director so states, that at the time, claimant said she was deceased’s fiancee and was so listed in the obituary. The death certificate said deceased was never married. Deceased’s mother was the beneficiary of his life insurance policy and administratrix of his estate. Family members, including deceased’s mother, father, siblings, and cousin testified or gave statements reflecting their belief that the deceased and claimant were engaged but not married, based upon the actions of the couple. (Deceased’s father acknowledged, however, that he had talked with his son only a couple of times in the year prior to his death.) Claimant’s teenaged son testified that he looked on deceased “like a step-dad,” and that he “saw them as married” although “they never said anything.” Friends made statements to the effect that they perceived the two as a couple, “like husband and wife,” although some of the same witnesses stated they did not hear the two refer to each other as such.
Deceased’s mother and the claimant became involved in a dispute over deceased’s estate. On January 9, 1996, claimant’s attorney wrote deceased’s mother’s attorney regarding “Settlement of the [claimant], estate of [deceased] matter,” and indicating that claimant had accepted the “negotiated agreement” by which the two would divide property and causes of action accruing to the estate. One of the provisions was that the mother would agree to withdraw her opposition to claimant’s affidavit to determine heirship pending before the probate court and “agrees not to contest the naming of [claimant] as informal wife of [deceased] at any time now or in the future”; and that the mother “immediately withdraws her claim to benefits now pending before the [Commission][1] and agrees not to refile at any time now or in the future.”
A transcript of proceedings before the probate court on January 11, 1996, reflects that the presiding judge initially took note of pending actions, which included a complaint for a correct inventory filed on behalf of claimant and a contested heirship which had been set for the following week, but stated that he had been advised by counsel that these matters had been settled and that the parties would prove up the heirship “as an agreed heirship.” Claimant took the witness stand and testified, briefly, that she and deceased began cohabiting in 1992, that they held themselves out as being husband and wife, that they registered at hotels as husband and wife, referred to each other as spouses, and shared a credit account and bill payments. The court thereafter signed an order declaring informal marriage and heirship, finding that claimant and deceased were informally married and that claimant was thus the lawful wife of deceased.
COMMON-LAW MARRIAGE
The statute governing informal or common-law marriages in Texas provides that, in any judicial or administrative proceeding, a marriage not registered as provided by the statute may be proved by evidence that the parties “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.” TEX. FAM. CODE ANN. 1.91(a) (Vernon 1993). Unless all three elements are found to exist, there is no common law marriage. Flores v. Flores, 847 S.W.2d 648 (Tex. App.-Waco 1993, writ denied).
The hearing officer found that the claimant and deceased lived together in Texas but that they were engaged and “did not mutually consider themselves married to one another at any time.” In her appeal, the claimant points to evidence indicating otherwise, including her testimony that they had agreed to be married upon moving in together, and testimony from other witnesses concerning the perceived nature of the relationship. She cites case law to the effect that the failure to file joint tax returns is not sufficient to deter the inference of a common-law marriage. She also cites Texas Workers’ Compensation Commission Appeal No. 92324, decided August 26, 1992, as a case in which an informal marriage was found to exist upon similar facts.
We would agree that the facts of Appeal No. 92324, supra, are very similar to those in the instant case, with the claimant contending that she and the deceased, with whom she had cohabited, agreed to be married and held themselves out to be so, and friends and relatives of both testifying both in support of and in opposition to this position. (One distinction, however, was the fact that the individuals in that case had previously been married ceremonially and had a child from that marriage, and had reunited some four years after their divorce.) The hearing officer found that a common-law marriage existed; in finding the evidence sufficient to support this determination, we noted that the evidence was conflicting, but that the hearing officer could resolve such conflict as he did. We also stated that certain evidence indicative of a non-marital status went to the weight of the evidence but did not negate the existence of a common-law marriage. The decision further cited this language from Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981):
Marriage, whether ceremonial or common-law, is proved by the same character of evidence necessary to establish any other fact . . . proof of common-law marriage may be shown by the conduct of the parties, or by such circumstances as their addressing each other as husband and wife, acknowledging their children as legitimate, joining in conveyance as spouses, and occupying the same dwelling place . . . the circumstances of each case must be determined based upon its own facts. [Citations omitted.]
The hearing officer is the sole judge of the relevance and materiality of the evidence and of its weight and credibility. Section 410.165(a). As the trier of fact, the hearing officer weighs all the evidence and decides what credence should be given to the whole, or to any part, of the testimony of each witness, and resolves inconsistences and conflicts in the evidence. Gonzales v. Texas Employers Insurance Association, 419 S.W.2d 203 (Tex. Civ. App.-Austin 1967, no writ). The hearing officer in the instant case clearly believed that claimant and deceased had a loving, committed relationship but did not believe the evidence demonstrated the requisite “present agreement to be married” rather than present cohabitation and future marriage Gary v. Gary, 490 S.W.2d, 929 (Tex. Civ. App.-Tyler 1973), writ ref’d n.r.e.). For example, the hearing officer could have determined that claimant’s assertion that she was deceased’s wife was belied by her statement, upon his death, that she was his fiancee. The hearing officer could also have believed that claimant and deceased, while by some accounts occasionally demonstrating some indicia of a married relationship, nevertheless were part of, and presented to others as, a cohabitation of two individuals who planned to become married at a future time. As the court stated in Flores, supra,
[N]on-marital cohabitation for extended periods of time is far more common than it once was and . . . evidence of a tacit agreement to marry should be weighed more carefully than in the past. . . . Occasional references to “my wife” or “my husband” do not prove a tacit agreement to be married without corroboration. . . . On the other hand, a forthright assertion of marriage with the consequences of liability–such as when an alleged spouse seeks admission of the other to a hospital or the filing of an [sic] joint income tax return–may be far more probative of such an agreement. [Citations omitted.]
Upon our review of the evidence, we find it sufficient to support the hearing officer’s decision. (We also find no error, as alleged by claimant, in the hearing officer’s statement that she and deceased never told her son that they were married; we believe the hearing officer was entitled to draw this inference from the boy’s testimony, as quoted above.) We will not overturn such decision where it is supported by the evidence and is not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
COLLATERAL ESTOPPEL
We agree with the carrier that although claimant’s first point of error was phrased in the form of an objection to the hearing officer’s allowing testimony on the issue of the informal marriage, such objection was not raised at the hearing and, indeed, much of this testimony was from witnesses called by the claimant. Nevertheless, the claimant also argues that the probate court’s January 11, 1996, order declaring informal marriage and heirship collaterally estops the hearing officer from determining the issue in this case.
Collateral estoppel, frequently referred to as issue preclusion, bars relitigation of any ultimate issue of fact actually litigated and essential to the judgment in a prior suit, regardless of whether the second suit is based on the same cause of action. Wilhite v. Adams, 640 S.W.2d 875 (Tex. 1982). A party seeking to invoke this doctrine must establish that the facts sought to be litigated in the second action were fully and fairly litigated in the prior action; that those facts were essential to the judgment in the first action; and that the parties were cast as adversaries in the first action. Benson v. Wanda Petroleum Company, 468 S.W.2d 316 (Tex. 1971). In other words, there must be identity of parties and issues between the two proceedings.
The Supreme Court in Benson v. Wanda Petroleum Co., 468 S.W.2d 361 (Tex. 1971), stated with regard to these criteria:
Due process requires that the rule of collateral estoppel operate only against persons who have had their day in court either as a party to the prior suit or as a privy, and, where not so, that, at the least, the presently asserted interest was actually and adequately represented in the prior trial.
The court has further stated that the doctrine applies only when the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit. Tarter v. Metropolitan Savings & Loan Association, 744 S.W.2d 926 (Tex. 1988).
The claimant asserts that the requisite criteria have been met, in that both cases litigated the same issue (i.e., the status of the claimant beneficiary). Further, she argues that the hearing officer erred in determining that the SIF and the carrier were not parties to the action which resulted in the probate court’s order; she asserts that the Probate Code does not require notice on probate matters except to interested persons, defined in pertinent part as “heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered.” TEX. PROB. CODE ANN. 3 (Vernon 1980).
We are not persuaded by this argument, nor by the fact, as claimant states, that death benefits under the 1989 Act are payable to certain beneficiaries of a decedent and not to the estate. Under the Act, a death benefit means a payment made to a legal beneficiary, who includes a person who is entitled to receive such benefits. See Section 408.142, which provides for distribution of death benefits; Section 408.183, duration of death benefits; and Section 408.184, redistribution of death benefits. However, if an employee is not survived by legal beneficiaries, or if all legal beneficiaries cease to be eligible, the benefits shall be paid to the SIF. Sections 408.182(e); 408.184(c). While the SIF or a carrier may not be a person entitled to notice in a probate action, both clearly possess interests which may be impacted by an order such as the one entered in this case. We thus agree that the requisite identity of parties did not exist so as to preclude the determination below. In so holding, we also note that courts have held that collateral estoppel should not apply where such would work a manifest injustice, or where special circumstances exist which would render preclusion inappropriate or unfair. U.S. v. Lubbock ISD, 455 F. Supp. 1223, aff’d 601 F2d 585; U.S. v. Shanblum, 10 F3d 305. We believe that to be the case in the instant situation, where parties could seek to thwart the Commission’s jurisdiction over workers’ compensation death benefits through an ex parte
procedure in a different forum. We do not believe this is what the legislature intended when it strictly prescribed the persons to whom benefits could be paid, the manner of establishing beneficiary status, and the SIF’s right to benefits where the requisite showing has not been made.
The decision and order of the hearing officer are affirmed.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Philip F. O’Neill – Appeals Judge
- At the hearing, deceased’s mother and his brother testified as to gifts deceased had given his mother over the past few years, but the mother also stated the value of these gifts was less than 20% of her net resources. ↑