Azimow v. Azimow, 468A61

• Decision Date: 03 March 1970
• Docket Number: No. 1,No. 468A61,468A61,1
• Citation: Azimow v. Azimow, 255 N.E.2d 667, 146 Ind.App. 341 (Ind. App. 1970)
• Parties: Mary Williams AZIMOW, Appellant, v. Maxine AZIMOW et al., Appellees
• Court: Indiana Appellate Court

Page 667

255 N.E.2d 667

146 Ind.App. 341

Mary Williams AZIMOW, Appellant, v.Maxine AZIMOW et al., Appellees.

No. 468A61.

Appellate Court of Indiana, Division No. 1.

March 3, 1970.

Rehearing Denied April 21, 1970.

Royse, Travis, Hendrickson & Pantzer, Indianapolis, for appellant.

Henry E. Bradshaw, Grace M. Curry, Indianapolis, for appellees; Bingham, Summers, Welsh & Spilman, Indianapolis, Paul E. Schrenker, Schrenker & Anderson, Anderson, of counsel.

CARSON, Judge.

This appeal arises from a judgment entered against appellant upon a petition for the determination of heirship of Benjamin Azimow.Petitioner-appellant alleges that she is the surviving widow of Benjamin (Ben) Azimow by virtue of a common-law marriage purportedly consummated in 1941.¹Appellant sought below and adjudication of her rights as such surviving widow.The issues were framed upon the petition, no answer thereto being required.The trial court, subsequent to a hearing, found against petitioner-appellant and entered judgment accordingly.

Appellant specifies in her motion for a new trial that the decision of the court is contrary to law; that the decision of the court is not sustained by sufficient evidence; and that the trial court committed various errors of law during the hearing of this cause in sustaining objections to questions, and in refusing to permit the introduction of certain exhibits.The overruling of appellant's motion for a new trial is the sole error assigned.This being an appeal from a negative judgment, the specification that the decision of the court is not sustained by sufficient evidence, presents nothing for our consideration.

Pokraka v. Lummus Co.(1952), 230 Ind. 523, 104 N.E.2d 669.

In support of the specification that the decision of the trial court is contrary to law, appellant advances two propositions: 1) that once a common-law marriage is shown in evidence, the law creates a strong presumption of its validity, at which time it becomes incumbent upon those opposing its existence to come forth with evidence sufficient to rebut that presumption; and 2) appellant would have this court adopt the theory of a 'secret common-law marriage.'

In support of the first proposition above, appellant cites as authority the following decisions:

Langdon v. Langdon(1933), 204 Ind. 321, 183 N.E. 400, 85 A.L.R. 1297;

Castor v. Davis et al.(1889), 120 Ind. 231, 22 N.E. 110;

Boulden et al. v. McIntire(1889), 119 Ind. 574, 21 N.E. 445;

Teter v. Teter(1885), 101 Ind. 129, 51 Am.Rep. 742;

Haddon v. Crawford(1912), 49 Ind.App. 551, 97 N.E. 811;

Franklin v. Lee(1902), 30 Ind.App. 31, 62 N.E. 78(Transfer denied).

If appellant is correct in her assertion that once a common-law marriage is shown in evidence a presumption of its validity arises, such a presumption should be invoked herein as petitioner-appellant's evidence, standing alone, would be sufficient to warrant the invocation of presumed validity.Likewise, and as a result thereof, the test to be applied by this court would be: As a matter of law, is the evidence of record, taken in a light most favorable to appellees, sufficient to overcome that presumption?If the application of that test should provide a negative answer, the decision of the trial court would be deemed contrary to law.Teter v. Teter, supra.

However, should this court resolve not to invoke the asseted presumption, the test to be applied in this case would be as stated in Pokraka v. Lummus Co., supra, (1952), 230 Ind. 523, at page 532, 104 N.E.2d 669, at page 673:

'It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law.'

After a review of the cases above, cited by appellant, we conclude that the sole authority for the proposition advanced is Langdon v. Langdon, supra.²Appellant quotes language from Langdon, supra, wherein, at pages 328--329 of 204 Ind., page 403 of 183 N.E., the Supreme Court stated 'The question, therefore, is: Which is the stronger presumption, that of continued insanity of William Langdon for a period of almost five and one-half years, and consequent adultery, or that of restoration of sanity and legitimate cohabitation?If we presume that William Langdon regained his sanity before his death, and continued to live and cohabit with Grace Langdon as husband and wife, being accepted in society as such, the law will presume a good common-law marriage, the presumption being in favor of morality and not immorality, legitimacy and not bastardy.'

A 'presumption of law' was defined by our Supreme Court in City of Indianapolis v. Keeley(1906), 167 Ind. 516, at page 527, 79 N.E. 499, at page 503:

'Presumptions of law are such inferences as are warranted by the legal experience of courts in administering justice, and are usually founded upon reasons of public policy and social convenience and safety.'

It is our opinion that current 'reasons of public policy and social convenience' as enunciated by the General Assembly ³ ] and by the latest decisions of this court and our Supreme Court, ⁴ no longer support the application of a presumption such as appellant herein asserts.The General Assembly, in 1957, abolished common-law marriages purportedly consummated after January 1, 1958.

This court in Estate of Dittman v. Biesenbach, Adm'r., etc.(1953), 124 Ind.App. 198, at pages 209--210, 115 N.E.2d 125, at pages 130--131, stated:

'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 casewe 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 casewe 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.'

The above language was quoted with approval by the Supreme Court of Indiana in Anderson v. Anderson, supra(1956), 235 Ind. 113, 131 N.E.2d 301.

Further, this court in Estate of Dittman v. Biesenbach, Adm'r., etc., supra, at page 211 of 124 Ind.App., page 131 of 115 N.E.2d, stated:

'The burden rested upon the appellee to establish by a preponderance of evidence of probative value that these parties made and entered into a contract of marriage in words of the present tense, that mutuality existed in this contract and that there was a holding out of such relationship in the community where they lived.Common-law marriages should be recognized with caution by courts and should not receive judicial sanction if the conduct of the parties fails to show clearly an honorable, abiding agreement entered into, and that the same existed before the eyes of the community.McChesney v. Johnson(Tex.Civ.App.1935), 79 S.W.2d 658.'

The Supreme Court of Indiana, by way of explanation of the Anderson decision, in In re Sutherland's Estate(1965), 246 Ind. 234, at page 238, 204 N.E.2d 520, at page 522, stated:

'The basis for that decision was that in this day and age the law does not look with favor upon common law marriages, since a public record and ceremony may be made thereof with ease, and thereby set at rest any questions of title or interest in property, inheritance or legitimacy of children.We are not living in the frontier days where hardships existed in attempting to make a public record of a marriage.'

The trend enunciated in these later decisions was expressly recognized by this court in In re DeWitte v. DeWitte(1966), 140 Ind.App. 114, at page 118, 222 N.E.2d 285, at page 287, where it was stated:

'The body of case law governing common-law marriages in Indiana is extensive.An examination of these cases discloses the gradual emergence of a progressive attitude by the courts in laying down more and more stringent legal requirements when validating common-law marriages.The ultimate effect of this progressive attitude of the court and the disfavor of public opinion led to the abolition of common-law marriages in this state.'

In light of legislative action and the position expressly stated by this court and our Supreme Court in later decisions, we hold that to the extent the Langdon case, or any other past decision of the courts of this State, can be construed to stand for the proposition that once a party⁵ to an alleged common-law marriage introduces evidence of the essential elements thereof, a presumption of validity arises and the burden of going forward with evidence sufficient to rebut that presumption shifts to those opposing its existence, it no longer enunciates the current policy of this State and is, therefore, overruled.

As a consequence of our decision that petitioner-appellant's position herein is not aided by legal presumption, her specification that the decision of the trial court is contrary to law requires of us only to consider the evidence most favorable to appellees.Pokraka v. Lummus Co., supra.

That evidence may be summarized as follows:

During a 13-year period immediately preceding his death, Benjamin Azimow executed, under oath, in excess of eighty legal documents (including deeds and mortgages) in each of which he referred to himself as an 'unmarried man'; Mary Williams(petitioner-appellant herein) prepared and acknowledged as a notary, most of these documents; preceding the filing of her petition herein, petitioner-appellant...