Lasana Marena v. Margaret George--Appeal from 328th District Court of Fort Bend County

Affirmed and Memorandum Opinion filed October 19, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01283-CV

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LASANA MARENA, Appellant

V.

MARGARET GEORGE, Appellee

On Appeal from the 328th District Court

Fort Bend County, Texas

Trial Court Cause No. 01CV117016

M E M O R A N D U M O P I N I O N

Appellant, Lasana Marena, appeals a final decree of divorce. Marena asserts the trial court abused its discretion in finding that a common law marriage existed between him and appellee, Margaret George. George filed a petition seeking divorce from Marena, in which she alleged they were married on August 30, 1994. Marena maintained that he and George were never married. The case was tried before the associate judge. Although the parties waived their right to Aa record of the testimony,@ the trial proceedings were recordedCone part stenographically, and the other part electronically.

The reporter=s record filed with this court, therefore, consists of the court reporter=s transcription of the stenographically recorded portion of the trial and certified copies of tapes of the electronically recorded portion. When trial proceedings are electronically recorded, it is the appellant=s burden to have the portions relevant to the issues in his appeal transcribed and filed in the appellate court as an appendix to his brief. Tex. R. App. P. 38.5(a)(1). Marena has not filed with this court an appendix of the electronically recorded portions of the trial relevant to his issue on appeal.

Marena=s sole issue in this appeal is whether the trial court abused its discretion in finding that a common law marriage existed between him and George because the evidence did not support the finding, i.e., (1) an agreement to be married; (2) living together in Texas as husband and wife subsequent to the agreement to be married; and (3) representing to others in Texas that they are married. Tex. Fam. Code Ann. ' 2.401(a)(2) (Vernon 1998); Mills v. Mest, 94 S.W.3d 72, 73 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). Such an inquiry necessarily requires a review of the record. However, we are not required to review any part of the electronic recording. Tex. R. App. P. 38.5(b). In the absence of a transcription of the electronically recorded portion of the trial, we cannot determine whether the trial court abused its discretion in finding that a common law marriage existed, and will presume the omitted portion is relevant and supports the trial court=s judgment. See id.; Bryant v. United Shortline Inc. Assur. Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998); In re J.A.G., 18 S.W.3d 772, 773 (Tex. App.CSan Antonio 2000, no pet.).

Marena=s sole contention is overruled, and the trial court=s judgment is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed October 19, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.