Assoun v. Gustafson

Justices Myers, Evans (Opinion), and Whitehill (Dissent)

Yan Assoun and his wife Anais were divorced in 1997. The court ordered Yan to pay Anais alimony of $132,000 per year until she remarried, but in 2013 increased that to $380,000 per year. Having learned Anais and their children had moved in with her new romantic interest, John Gustafson, in Collin County, Texas, Yan filed a declaratory judgment action there, seeking a determination Anais and John were “informally married” (in the vernacular, “common law” spouses)—a ruling that might free him from his alimony obligation. No surprise, Anais and John resisted. The trial court granted summary judgment to Anais and John on the strength of their affidavits in which both expressly denied ever agreeing to be married, despite substantial circumstantial evidence to the contrary. A divided Dallas Court of Appeals affirmed.

Section 2.401 of the Family Code provides that an informal marriage may be proven by evidence that the couple “agreed to be married and after the agreement they lived together in [Texas] as husband and wife and there represented to others that they were married.” Anais and John did not dispute the second and third elements, i.e., that they lived together and had represented themselves to others as husband and wife. But, they argued, Yan’s claim failed as a matter of law because both of them had expressly denied the threshold requirement—an agreement to be married—that direct evidence from both putative spouses could never be overcome by circumstantial evidence to the contrary. The majority acknowledged that “the existence of an informal marriage is a question of fact that can be proven by circumstantial evidence,” citing Russell v. Russell, 865 S.W.2d 929 (Tex. 1993), but held Yan’s circumstantial evidence did not create a genuine issue of material fact on the issue of agreement to be married, in light of the direct evidence from John’s and Anais’s express denials of such an agreement.

Justice Whitehill disagreed, diverging from the majority on three main points. First, he said, John and Anais had pursued summary judgment solely on the ground that circumstantial evidence could never effectively controvert the sworn denials of an agreement to be married by the two putative spouses—something Anais’s counsel seemed to have conceded on appeal. On that issue, characterized as a matter of “first impression,” the dissent would have held that the plain language of § 2.401 does not mandate that direct evidence in the form of denials of an agreement to be married is unassailable and can never be overcome by contrary circumstantial evidence, particularly in light of the Supreme Court’s declaration in Russell that informal marriage can be proven by circumstantial evidence.

Second, argued the dissent, because Anais and John had moved only on the ground that no circumstantial evidence could ever rebut their direct evidence, the appeals court should not even consider whether Yan’s particular circumstantial evidence was sufficient to create a fact issue here.

And finally, if Yan’s circumstantial evidence of agreement were properly considered, it was sufficient to defeat summary judgment. For example, Anais sold her home and moved into John’s home with her children, while falsely representing she lived at an address that was actually an “uninhabitable construction site”; Anais and John travel together as a couple, registering in hotels as Mr. & Mrs. Gustafson (John’s last name); Anais has appeared in numerous social settings wearing what appears to be a wedding ring on the ring finger of her left hand; and John’s daughter publicly refers to Anais and her kids as her stepmom, stepsister, and brother. Combined with their substantial financial incentive to deny marriage, these and other facts are enough, the dissent concluded, to raise genuine issues about whether John and Anais had agreed to be married and about the credibility of their denials.