June 2021 UPDATE: The Dallas Court of Appeals has withdraw their original opinion in this case from December 2020 and replaced it with a new opinion. The new opinion eliminates the dicta (lawyer word for unnecessary opining) about the issue of retroactivity of same-sex marriage pre-Obergefell and sticks to the main question of whether error was preserved about the jury charge. That was my main criticism about the December 2020 opinion — it didn’t need to go there to reach the decision in the case. The Dallas Court of Appeals appears to have self-corrected on this issue to stick with the main point of the case and not wade into the controversial issues unnecessarily.

 

 

The Dallas Court of Appeals issued an opinion in Hinojosa v. Lafredo on Friday that potentially calls into question the retroactivity of same-sex marriages in Texas.

Hinojosa sued for dissolution of an alleged marriage. The trial court bifurcated the case and jury trial was held on the first portion of the case to determine whether there was an informal marriage.

The relationship began in 1999 when the two men began cohabiting together. At Christmas LaFredo proposed marriage in a card given to Hinojosa. Hinojosa agreed to be married. LaFredo later denied this was a marriage proposal because he knew that two men could not marry under the current state of the law at that time. The two held a “commitment ceremony” in october 2000 in Italy with their friends and family in attendance. During the ceremony, the men exchanged rings, lit a unity candly, and accepted each other as “life partners”. Hinojosa called the ceremony a wedding thereafter and LaFredo never objected to that characterization. After returning to New York following the ceremony, both men referred to each other as married in front of others and introduced each other as spouses. In 2005 the men moved to Texas and bought a house together. The real estate documents listed the men as “single” co-owners. Throughout the relationship, the men maintained separate bank accounts, filed separate returns as single individuals, and attempted to split their expenses evenly. The parties separated in 2014 and Hinojosa filed for divorce in late 2015.

Hinojosa plead for divorce based on a formal ceremonial marriage, or alternatively, based on an informal marriage. At the bifurcated trial on the existence of a marriage, the jury charge did not include a question about whether there was a formal, ceremonial marriage. Instead, the charge only asked if the men were “informally married” and as of what date.

The error presented at the court of appeals challenged the jury charge. First, Hinojosa argued that the jury should have been charged on whether there was a formal marriage. Second, Hinojosa challenged an instruction given to the jury that Texas did not legally recognize same-sex marriage prior to June 26, 2015 because it was an incorrect statement of the law which confused the jury.

As to the first issue, the court of appeals held that it was not error to refuse to charge on whether there was a ceremonial marriage because the requirements for ceremonial marriage were not met. In other words, the men did not get a marriage license executed by the county clerk and have the ceremony performed by a judge, clergy, or public official within 90-days of getting the licenses. The court of appeals went on to opine that the question of the effect of Obergefell’s decision determining the impediments to same-sex marriage unconstitutional leaves an open question as to the retroactive application to relationships that pre-dated that decision. Further, the court opines that, even assuming Obergefell applies retroactively which relieved the men from establishing that they obtained a valid marriage license, they still must prove that the other requirements of a ceremonial marriage were met.  The court of appeals held that Hinojosa’s counsel failed to properly request the charge he sought to be included and tender the exact wording he wanted included.

As to the second issue presented to the court of appeals, Hinojosa complained that the instruction about the legality of same-sex marriage misstated the law. However, the court of appeals found that Hinojosa failed to make that objection at trial which waived his error on appeal. Further, the court of appeals held that Hinojosa failed to show that the inclusion of the offending instruction caused the rendition of an improper judgment.

Michelle’s commentary: Ultimately, the court of appeals affirmed the judgment of the trial court based on trial counsel’s waiver of error. The dicta regarding the supposed openness of the retroactivity question seems unnecessary to the result. It confuses me in reading the opinion why it was germane to the discussion for the court of appeals to opine about retroactivity. Courts of appeals justices are known to hang on waiver error when possible to avoid controversial determinations. So, there should have been no reason to wade into the waters of retroactivity of Obergefell when they found waiver.