Opinion
No. 39719-84-250
Decided December 11, 1984.
Domestic relations — Common-law marriage — Elements must be established by "clear and convincing evidence" — Elements of common-law marriage set forth.
O.Jur 3d Family Law § 44.
Each element of a common-law marriage must be established by "clear and convincing evidence." The elements that have to be established by the proponent of the common-law marriage are: (1) an agreement to marry in praesenti, (2) made by the parties competent to contract, (3) which is accepted by the parties and followed by cohabitation as husband and wife, and (4) with the result that the parties are treated and reputed in the community where they reside as husband and wife.
Donald Teffner, for plaintiff.
John Spiegel, for defendant.
This matter came to the attention of the court by virtue of the objections to the report of the referee's findings and recommendations. The court, after reviewing the entire files and considering all matters as required by law, sustains the objections to the report and recommendations of the referee duly filed by the defendant herein.
After reviewing the testimony, there are several items that are not in dispute. Basically, there is no question that the parties were married on October 10, 1970, and the marriage was dissolved in 1980. It is further not disputed that the parties never separated and after the dissolution continued to live under the same roof, sharing the same house and the same bedroom. It further appeared that very little else changed, and the parties still had a joint checking account and had various debts in their joint names. Furthermore, the defendant, Gale Wayne Makeever, did have on his health benefits contract through his employer the plaintiff, Judy Lynn Makeever, listed as his spouse. It is also not in contention the fact that the defendant continued his obligation under the decree of dissolution by paying his child support through the bureau of support with the exception of a very short period. Another item in which there is no dispute is the fact that the parties filed separate income tax returns. The defendant filed as the head of the household, while the plaintiff filed as single.
By sustaining the objections to the report and recommendation of the referee, this court in no way criticizes the referee's conclusion; however, this court had before it the entire record to read at one time and had the benefit of that record.
The court finds that there is no common-law marriage involved, and this finding is predicated upon the testimony of the plaintiff herself. First of all, it seems very odd that when the bureau of support attempted to collect back support from the defendant, that the plaintiff and the defendant did not tell the bureau of support that they had remarried or were living in common law as husband and wife. Instead, an affidavit was submitted to the bureau of support by the plaintiff acknowledging that she received those child-support payments directly.
The court realizes that in evidence is the paper from Modern Finance Company which indicates that the parties were husband and wife; however, Kurt Albert, an employee of Modern Finance, testified that he knew that they were not married because they said so. Plaintiff's most damaging testimony on the record states:
"He [defendant] said. `Let's get married,' because he was figuring up his taxes.
"And I said, `Why?'
"And he said, `Because we can get a break on our taxes.'
"* * *
"No. If he told me he loved me like he had done before, I would have said yes. To me, it was just to evade income taxes."
Further, in the record, there was an incident testified to regarding a seventeen-year-old girl who told the plaintiff that the defendant asked her to go out with him. At that point the plaintiff testified that she said:
"Hey, I'm not married to him. He's sitting out there. If you want him, go get him."
Further there was testimony from the parties' loan officer at United Bank that he knew they were not married and had asked them in the presence of each other if they intended to remarry, and the response was negative.
Jolley v. Jolley (1975), 46 Ohio Misc. 40 [75 O.O.2d 350], is the prevailing law in this area which states that each element of a common-law marriage must be established by "clear and convincing evidence." The elements that have to be established by the proponent of the common-law marriage are:
(1) An agreement to marry in praesenti,
(2) made by the parties competent to contract,
(3) which is accepted by the parties and followed by cohabitation as husband and wife, and
(4) with the result that the parties are treated and reputed in the community where they reside as husband and wife.
Each element must be proved by clear and convincing evidence. This is clearly more than proof by a preponderance of the evidence. In the Jolley case Judge Carroll cites In re Redman (1939), 135 Ohio St. 554 [14 O.O. 426], by stating:
"* * * such informal marriages are seldom recognized and held valid by our courts and are only done so to protect the rights of innocent persons." (Emphasis added.)
In the fact pattern before us, neither of the parties is totally innocent and the court finds that after reviewing the entire testimony, there was no agreement to marry in praesenti.
Therefore, based upon the above, it is hereby ordered that the objections to the report of the referee are hereby sustained, and the referee's decision is hereby reversed; and it is further ordered that the motion to dismiss the complaint on the basis that this marriage was already dissolved is hereby sustained.
It is further ordered that judgment shall be rendered for the defendant as against the plaintiff.
By the ruling of this court concerning the absence of a common-law marriage, this court does not make the statement or establish the policy that the plaintiff might or might not be entitled to some type of monetary judgment for services rendered to the defendant while the parties were cohabiting as this could not be determined in this action but would have to be filed in a separate claim.
Judgment accordingly.