Anderson v. Anderson

Decision Date13 January 1956
Docket NumberNo. 29255,29255
Citation235 Ind. 113,131 N.E.2d 301
PartiesSoul J. ANDERSON, Appellant, v. Lula ANDERSON, Appellee.
CourtIndiana Supreme Court

Lawrence Booram, Grace B. De Armond, Anderson, for appellant.

Charles B. Salyer and Sid M. Cleveland, Anderson, for appellee.

EMMERT, Judge.

This appeal reaches us by transfer from the Appellate Court for failure of four judges to concur in the result under § 4-209, Burns' 1946 Replacement. The judgment appealed from granted an absolute divorce to the appellee, awarded her $2,000 alimony, attorneys' fees, and support for a minor child of the parties. The complaint attempted to allege a common-law marriage, and if the judgment is to be sustained it must be on the assumption there was in fact such a common-law marriage. The assignment of errors alleges the lower court erred in overruling appellant's motion for a new trial.

We have carefully examined the evidence, and when viewed most favorably to appellee, it discloses the following:

Appellee testified she came to Marion, Indiana, from Birmingham, Alabama, about 16 years ago. She had never been married before she moved to Anderson. While she was at Marion she met the appellant, went with him, and had sexual intercourse with him, but did not live with him while in that city.

She testified that she and the appellant in 1940 came to Anderson to look at a house at 1529 Forkner, which he bought and took the title in his name, and which the parties lived in until the time of trial. She stated 'He told me if I come over and lived with him I wouldn't have nothing to worry about. That he would take care of me.' They started living together and she 'did for him like a wife.' While living there, their relations were as 'man and wife.' She testified, 'I wasn't married and he asked me would I come and live with him and I wouldn't have a thing to worry about about and we would marry later on and he kept on putting it off.' 'He didn't never' say when he was going to marry, 'He just told me he would do it.' About the time they moved to Anderson she stated on the subject of marriage 'I didn't ask him no more because he told me he was going to marry me, but he didn't ever do it. He kept on putting it off.' He took her on one trip to Chicago, and three or four trips to Terre Haute where they slept together, and he introduced her as Mrs. Anderson. When they first moved to Anderson he introduced her as Mrs. Anderson, and this happened many times. Four or five years before the trial she asked him about obtaining a marriage license and having a preacher marry them 'and he said he would do it,' but he never did.

In 1950 appellee sued appellant for divorce, but the action was never tried, and a reconciliation was effected with the parties again living together at the same address. She stated she went back to him 'Because he promised me he would do better and go fix everything up.'

During part of the time the parties lived together in Anderson she worked and clothed herself. She owned most of the household goods although some had been purchased together. He bought the groceries, claimed her as a dependent wife on his federal income tax returns, and she was listed as his wife in one county tax assessment list. He took out an insurance policy showing her as his wife, but the title to the residence was never changed to vest any interest in her. In 1951 the parties had a child, the birth certificate showing appellant as the father, but it did not show the parties were married or that the child was legitimate. Appellant paid the hospital and medical expenses.

The burden of proving a common-law marriage is on the party asserting and relying upon it. State ex rel. Schumacher v. Adams, Cir.Ct., 1947, 225 Ind. 200, 204, 73 N.E.2d 689; Lowrance v. Lowrance, 1932, 95 Ind.App. 345, 355, 182 N.E. 273.

'Marriage is a status resulting from a contract to marry entered into by a man and a woman capable of making such a contract.' Compton v. Benham, 1908, 44 Ind.App. 51, 58, 85 N.E. 365, 367. This language was approved in Bolkovac v. State, 1951, 229 Ind. 294, 304, 98 N.E.2d 250.

Where the relations of the parties are illicit in the beginning, the rule is well settled in Indiana that there must be clear evidence of an actual contract of marriage independent of any presumption before the court will find there was a common-law marriage. 'It seems to be well settled in this state as well as in other jurisdictions that, although the relations of the parties were at first illicit, they are not thereby precluded from thereafter contracting a valid common-law marriage. Mayes v. Mayes (1925), 84 Ind.App. 90, 147 N.E. 630, 631; Gorden v. Gorden (1918), 283 Ill. 182, 119 N.E. 312; Robinson v. Ruprecht (1901), 191 Ill. 424, 61 N.E. 631. As was said in Mayes v. Mayes, supra: 'A cohabitation illicit in its origin is presumed to be of that character, unless the contrary be proved, and cannot be transformed into matrimony by evidence which falls short of establishing the fact of an actual contract of marriage. Such contract may be proved by circumstances, but they must be such as to exclude the inference or presumption that the former relation continued, and satisfactorily prove that it had been changed into that of actual matrimony by mutual consent.' Where the cohabitation is shown to have begun meretriciously, the burden is upon the person claiming marriage to show it, independently of presumption. Gorden v. Gorden, supra; Sebree v. Sebree [1920], 293 Ill. 228, 127 N.E. 392.' Lowrance v. Lowrance, 1932, 95 Ind.App. 345, 355, 182 N.E. 273, 276.

In 1953 the Appellate Court, in a unanimous opinion by Chief Judge Kendall, made an exhaustive review of the Indiana authorities on common-law marriage, and correctly declared the law as follows 124 Ind.App. 198, at pages 201, 202, 207, 209, and 210, 115 N.E.2d 125 at pages 127, 129, 130 and 131:

'To constitute a commonlaw marriage more is required than proof of a contract. Such contract must be acted upon by a holding out of such relationship by the respective parties thereto. [Italics supplied.] In the case of Schilling v. Parsons, Administrator, supra [110 Ind.App. 52, 36 N.E.2d 958], the court said:

"But where the contract between the parties is oral but not witnessed, even though followed by cohabitation, an additional factor is necessary to establish a common law marriage. Under such circumstances there must be a holding out by the parties of their marriage status to at least such part of the public in the community in which they live as is made up of their acquaintances, neighbors and relatives.' (Our emphasis.)

* * *

* * *

'In the case of Mayers v. Mayes, 1925, 84 Ind.App. 90, 147 N.E. 630, 631, the court said:

"'A cohabitation illicit in its origin is presumed to be of that character, unless the contrary be proved, and cannot be transformed into matrimony by evidence which falls short of establishing the fact of an actual contract of marriage. (Our emphasis.) Such contract may be proved by circumstances, but they must be such as to exclude the inference or presumption that the former relation continued, and satisfactorily prove that it had been changed into that of actual matrimony by mutual consent.''

'Where the cohabitation is shown to have begun meretriciously, the burden is upon the person claiming such marriage ot show it independently of such presumption.

* * *

* * *

'We believe the existence of a common-law marriage is dependent upon there being a contract of marriage between the parties in words of the present tense; that there must be mutuality to such contract and that the minds of both parties must meet in mutual consent to said marital status. [Italics supplied.]

'The mere living together in the ostensible relation of husband and wife does not of itself constitute a marriage. Balanti v. Stineman Coal & Coke Co., 1938, 131 Pa.Super. 344, 200 A. 236.

'Common-law marriages are recognized in Indiana, but since they are a fruitful source of perjury and fraud, they are merely tolerated and are not encouraged. Even if there is a purported contract of common-law marriage, which in this case we [p. 209] do not find to exist, it must be examined with great scrutiny, and, in order to sustain it, it must plainly appear that there was an actual mutual assent between the parties and a holding out to the public in which they lived. A common-law marriage, such as was sought to be established in this case we believe implies that both parties are able and willing to marry and that they solemnly entered into a contract of marriage in terms of the present tense for the purpose of establishing the immediate relation of husband and wife, and, if any of the essential requirements are lacking as herein pointed out, the relation becomes illicit and meretricious and not a valid common-law marriage. Baker v. Mitchell, 1941, 143 Pa.Super. 50, 17 A.2d 738. [Italics supplied.]

'In the case of In re Meredith's Estate, 1937, 279 Mich. 298, 272 N.W. 683 it was held that the showing that a man and woman cohabited together and were known as husband and wife is not alone sufficient to establish common-law marriage, but it must also be shown that there was a present agreement between the man and woman to take each other as husband and wife.' [p. 210.] Estate of Dittman v. Biesenbach, Adm'r, etc., 1953, 124 Ind.App. 198, 115 N.E.2d 125.

As noted in the Dittman case, supra, there must be a contract, and it must arise from words in the present tense. This is in accord with the general law of other jurisdictions. 'With regard to common-law marriages effected by the express agreement of the parties, a distinction is made between contracts per verba de praesenti, that it, where the parties take each other in the present tense, implying that the marital relation is constituted immediately, and contracts per verba de futuro, which imply no more than that the parties will marry each other at a later time. Contracts of the...

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