Opinion
No. 32971-74-492
Decided March 24, 1975.
Marriage — Common law marriage — Proved, how — Necessary elements — "Clear and convincing" evidence required — Agreement to marry in praesenti implied, when.
1. A "common law marriage" is marriage by agreement of the parties, is generally opposed to and contravenes the "public policy" of the state and each element thereof must be established by "clear and convincing" evidence.
2. The elements to be established by the proponent of the common law marriage are: (a) An agreement to marry in praesenti, (b) made by parties competent to contract, (c) which is accepted by the parties and followed by cohabitation as husband and wife, (d) with the result that the parties are treated and reputed in the community where they reside as husband and wife, and each element must be proved by "clear and convincing" evidence.
3. The "clear and convincing" evidence required to prove a common law marriage is that degree of proof, not necessarily conclusive, which will produce in the mind of the court a firm conviction of its truth. It is more than proof by a preponderance and less than proof beyond a reasonable doubt.
4. While a common law marriage may be implied from indirect evidence of the acts, declarations and conduct of the parties to it, as well as by express agreement; nevertheless, each element must be proven by "clear and convincing" evidence, whether express or implied, and no agreement to marry in praesenti will be implied in a case where each party involved in the claimed agreement fully testifies in the case and both fail to offer any direct evidence of the agreement in praesenti.
Messrs. Petri, Hottenroth Garverick and Mr. Lowell B. Garverick, for plaintiff.
Messrs. Myers, Spurlock, Sears Pry and Mr. Robert B. Spurlock, for defendant.
Mary June Jolley was married to George E. Jolley on December 12, 1965, in Crestline, Ohio. On August 27, 1970, they were divorced in the Common Pleas Court of Crawford County.
Thereafter, in 1971, the parties began to date, and, in accordance with the complaint filed in this case, the plaintiff claims that on April 15, 1971, plaintiff and defendant began to live together and hold themselves out as Mr. and Mrs. Jolley or man and wife; however, in the evidence, the plaintiff claims that this happened on January 15, 1971, when the defendant moved in to live with the plaintiff.
At the time of the divorce the plaintiff was restored to her former surname of McClure but only used it part of the time. The parties did live together and occupy the same bedroom.
The plaintiff called as a witness her son who testified that he lived with the Jolleys from May 1971 to April 1973. He assumed that they were married. He also testified that mail came as Mrs. June Jolley or Mr. and Mrs. George Jolley.
She next called a Mrs. Cover, secretary to the principal of Galion High School, who testified that she knew the plaintiff as Mrs. June Jolley, and she addressed mail to them as Mr. and Mrs. George Jolley and also heard Mr. Jolley introduce her as Mrs. June Jolley. She was not sure whether he said she was his wife.
Mina Moyer said she knew them eight to ten years and she was very positive in her testimony that she heard Mr. Jolley introduce the plaintiff at the club as his wife, and she testified that she knew that they bought this trailer together and further that he signed as man and wife at a convention they attended. However, when asked, she was very positive as to how they registered and so forth, that is, as man and wife rather than Mr. and Mrs. George Jolley, which seemed to this court as incredible that she could have known this without actually looking at the register herself.
Plaintiff next called her daughter who testified as to grounds for a divorce of the common law marriage. She did not furnish much other enlightening evidence as to the relationship of the parties except that she knew her mother as Mrs. Jolley.
Charles McClure took the stand and testified that he was the son of June Jolley and that he worked at Peabody and that he was known as the stepson of George Jolley.
Mrs. Jolley then took the witness stand and testified that she usually went under the name of Mrs. George Jolley except in several circumstances. She testified that she packed his lunch and did laundry for him and occupied the same bed, but both kept separate accounts.
In 1972 she had an operation, and she testified that he claimed her on his insurance policy at Peabody as his wife, and she said that she was recognized as Mrs. George Jolley. She testified that she filed income tax return in 1972 as Mrs. June Jolley and the last year they were married they filed separate returns. She stated that the defendant filed separately every year and on his returns he filed as a single person.
The court finds that in no place in the plaintiff's testimony or in any testimony of plaintiff's witnesses did she ever claim that there was any special agreement between herself and the defendant whereby they agreed to be husband and wife from that certain day forward and that they would live together for the rest of their lives as such.
All the testimony was directed as to their living as Mr. and Mrs. George Jolley and in a few incidents only did anybody testify that he said she was his wife. However, in 1971, it was shown that they purchased a housetrailer together and it was also stated that defendant had his hospitalization insurance at the shop shown as being married and claiming the plaintiff as his wife on said policy.
The defendant called Bernice Miller who testified to the fact that plaintiff and defendant were not living together as man and wife but that he called her on occasion June Jolley or June McClure. She further testified that the plaintiff and the defendant both told her that they were not married.
The mother of the defendant testified that the plaintiff said to her that she was not married to the defendant. She said that plaintiff complained that he went out with some other ladies and that she could do nothing about it because she was not married to him.
The sister of the defendant testified that plaintiff said they were not married.
Nancy Neumann took the stand and testified that on New Year's it appeared that plaintiff was having an affair with another man.
Defendant took the stand and testified that he did not enter into any agreement of marriage and never agreed to enter into such an agreement and that the only thing said was that they would live together and he would pay the expenses and so forth, and that she was to be his housekeeper and nothing more. He also testified that plaintiff had been married four times previously and in cross-examination of plaintiff she admitted the former marriages and that in each one they went through the formal requirements of a regular marriage and that she knew all the requirements. She also stated that she knew the requirements for a common law marriage which were to live together and to hold yourself out as man and wife in the community, and to love the defendant and take care of him.
CONCLUSION OF LAW
The court finds that to establish a common law marriage the following elements must be proven by clear and convincing evidence:
1) An agreement to marry in praesenti,
2) made by parties competent to contract,
3) accepted and followed by cohabitation as husband and wife, and
4) with the result that they were treated and reputed as husband and wife in the community in which they reside.
The burden of proof in this case is upon the plaintiff who is claiming the common law marriage existed, and she has the burden of proving all the foregoing elements by clear and convincing evidence.
Clear and convincing evidence has been variously defined as that degree of proof, though not necessarily conclusive, which will produce in the mind of the court a firm belief or conviction, or that degree of evidence which is more than a preponderance but less than beyond a reasonable doubt.
In this case, the court finds that the third element that the parties lived and cohabited as husband and wife has been shown and that they were treated by some of the people in Galion and in the circle in which they moved to be thought of as husband and wife, and there is no question that the two parties were competent to contract; however, while an agreement to marry in praesenti can be implied from the testimony of witnesses as to acts, declarations, admissions, and cohabitation of parties, this is usually done where neither the plaintiff nor defendant can testify; but in this case there is direct opposite testimony presented by the defendant and his witnesses to show that the parties, and some of their close friends and relatives, did not consider that they were actually married.
They were living together and the plaintiff was using the name of Mrs. George Jolley. However, in most cases it was only shown that they were called Mr. and Mrs. George Jolley and they received their mail that way, but there were only one or two witnesses who said that he introduced her or claimed her as his wife.
The strongest evidence on behalf of the plaintiff is that the defendant had her as his wife on his hospitalization policy where he worked; however, both claimed this in applying for sick benefits for the plaintiff, and while this is an offense against both of them, this is not actual proof in this case that they were actually married, especially not clear and convincing proof.
Most cases mention that common law marriage contravenes public policy and should not be accorded any favor. In fact it is generally condemned.
All the elements set forth before must be shown by clear and convincing evidence. The state has rigid statutes and regulations and requirements which marriage must conform to. While these of themselves do not publicly prohibit marriage without formalities, such informal marriages are seldom recognized and held valid by our courts and are only done so to protect the rights of innocent persons. (See In re Redman (1939), 135 Ohio St. 554, at page 558.)
As I have said before, there is no statement by the plaintiff or any of her witnesses that they agreed to become husband and wife at a certain time and that they intended to assume the relationship of marriage; in fact, the defendant specifically denies this and testified that there was no such agreement made.
At the time they assumed their relationship, it cannot be construed to constitute a contract of marriage. Their living together was not, therefore, pursuant to any marriage contract.
Although these matters can be proven by the acts and conduct of the parties as holding themselves out as Mr. and Mrs. George Jolley, it is not influential in this case because just the year before they were actually married and many of their friends perhaps did not even know that they were divorced.
Neither of these parties are innocent people. The plaintiff testified that she had married four times previously all by the rigid requirements of the law. She knew all about these requirements. I believe the defendant was married three times before.
The courts have noted that a common law marriage can be proved by the acts, declarations, and conduct of the parties, as set forth in Markley v. Hudson (1944), 143 Ohio St. 163. They still say that an agreement must be shown whether it be implied by the evidence or by an express agreement, but this must be clear and convincing evidence, and there is no evidence in this case from the plaintiff that any such type of agreement, even in an informal manner, or any understanding between the plaintiff and the defendant was made.
In fact, the plaintiff testified that she knew what constituted a common law marriage and all she had to do was live with the man, put themselves out in the community as husband and wife, love him and take care of him.
Therefore, the conclusion of this court is that the plaintiff has failed to show by clear and convincing evidence that any agreement to marry in praesenti was made by these parties; and, therefore, there was no existing so-called common law marriage.
Case dismissed.