Brown v. Brown

• Citation: 159 So.2d 855,276 Ala. 153
• Decision Date: 16 January 1964
• Docket Number: 6 Div. 12
• Parties: Jesse (alias Jessie) BROWN v. Annie Mae BROWN.
• Court: Supreme Court of Alabama

Page 855

159 So.2d 855

276 Ala. 153

Jesse (alias Jessie) BROWN v. Annie Mae BROWN.

6 Div. 12.

Supreme Court of Alabama.

Jan. 16, 1964.

Morel Montgomery, Birmingham, for appellant.

Beddow, Embry & Beddow and Fred Blanton, Birmingham, for appellee.

MERRILL, Justice.

Appeal by husband from a decree granting a divorce to his common law wife, awarding custody of their minor children to her, ordering appellant to pay $100 per month for the maintenance of the children, ordering a property settlement and allowing attorneys' fees to appellee.

Appellant and appellee, Negroes, went through a ceremonial marriage in 1942, and lived together until 1951, when they were divorced. Their four children were born during this marriage, but only two were minors or dependent when the present suit was tried. A few months after the divorce, they were reconciled and started living together again as man and wife in a common law marriage. In 1955, this relationship was dissolved by a second divorce. In January, 1956, they again began living together as man and wife, and this status continued until January, 1963, when they separated and appellee filed her bill for divorce in the instant case.

Most of the assignments of error raise the issue that there was no common law marriage from 1956 to 1963 and, therefore, there could be no divorce.

To constitute a valid common law marriage in Alabama, it is not necessary that there be a ceremonial marriage. All that is required is that there should be an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable in law of making such a contract, consummated by their cohabitation as man and wife or their mutual assumption openly of marital duties and obligations. Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So.2d 166; Jenkins v. Avery, 257 Ala. 387, 59 So.2d 671; Goodman v. McMillan, 258 Ala. 125, 61 So.2d 55; Tripp v. Tripp, 270 Ala. 320, 118 So.2d 761.

Here, weight is given to the fact that the 'parties had in times past or subsequent to the claimed relationship recognized or entered into the common law marriage.' Goodman v. McMillan, supra. Also, there was testimony that they discussed going back together after their second divorce; that appellant offered her a house, rented and later purchased a house; that they shared the same bedroom; that appellee had a miscarriage in 1958, that appellant paid her hospital bill; that the entire family lived together; that they had joint charge accounts at two stores; that appellant referred to appellee as his wife on many occasions, and that they were known as man and wife in the community.

On the record before us, considered in the light of the well-recognized presumption in favor of the trial court's finding from the evidence taken ore tenus, we are not able to say that the court erred in holding that there was a valid common law marriage which could be terminated once again by divorce. Johnson v. Johnson, 270 Ala. 587, 120 So.2d 739.

Assignment of error 6 cahrges that part of the decree a nullity which orders appellant to convey a one-half interest in the dwelling because it does not specify who the grantee in the deed should be. Paragraph 5 of the decree reads:

'Respondent shall convey by statutory warranty deed a one half interest in and to the dwelling formerly occupied by complainant...