Brown v. Brown

• Decision Date: 29 April 1975
• Docket Number: No. 29753,29753
• Citation: 215 S.E.2d 671,234 Ga. 300
• Parties: Kate Kenworthy BROWN v. Albert Eugene BROWN.
• Court: Georgia Supreme Court

Page 671

215 S.E.2d 671

234 Ga. 300

Kate Kenworthy BROWN v. Albert Eugene BROWN.

No. 29753.

Supreme Court of Georgia.

April 29, 1975.

Elliott & Turner, David J. Turner, Jr., Manchester, for appellant.

George C. Kennedy, Jr., Greenville, for appellee.

Syllabus Opinion by the Court

HILL, Justice.

Kate Kenworthy Brown appeals from the granting of Albert Eugene Brown's motion for judgment notwithstanding the verdict which set aside the jury verdict awarding her a divorce and alimony.

This case involves an alleged common law marriage between the parties. From 1962 until April of 1973, the two lived together as if husband and wife. However, until March, 1972, Gene Brown, the defendant, was legally married to another woman. After his divorce from that woman in March, 1972, he continued to live with the plaintiff until April 30, 1973. During this time they never entered into a ceremonial marriage. In July, 1973, appellant filed suit for divorce and alimony based on alleged cruel treatment. The jury returned a verdict in favor of appellant.

The defendant moved for judgment notwithstanding the verdict on the ground that the plaintiff failed to prove any marriage contract between the parties. The trial court granted the motion because in its opinion the evidence failed to show that a marriage was contracted between the parties and therefore there could be no divorce.

Code § 53-101 enumerates the essential elements of a marriage in this state: (1) The parties must be able to contract, (2) there must be an actual contract, and (3) there must be consummation according to law. In the absence of positive legislative enactment declaring unlicensed, nonceremonial marriages to be void, common law marriages have been recognized in Georgia since at least 1860. Askew v. Dupree, 30 Ga. 173; Allen v. State, 60 Ga.App. 248, 3 S.E.2d 780. The three requirements of Code § 53-101 must be met, all at one period in time, in order for there to be a common law marriage.

Concerning the first element, between 1962 and March, 1972, Gene Brown was married to another woman which prevented him from having the capacity to enter into another marriage contract. After his divorce in March, 1972, he was free to contract a marriage with the plaintiff. There is not dispute between the parties concerning their ability to contract after March, 1972, and plaintiff is not contending that the contract occurred before March, 1972.

Similarly there was more than sufficient evidence on the third element, consummation of the marriage; i.e., cohabitation as man and wife. The parties themselves both testified that they lived together, slept together, ate together, took vacations together and went on business trips together while the defendant was married to his first wife, and that they continued to do so after March, 1972, when both parties had the capacity to contract to marry. The evidence was sufficient as to consummation, see Long v. Long, 191 Ga. 606, 607, 13 S.E.2d 349, and its sufficiency is not seriously disputed here. Defendant's main contention is that there was no actual contract of marriage.

Even though the parties were capable of contracting a marriage and they did, in law, consummate that marriage, the second element as set out in Code § 53-101 is still necessary in order to find that a marriage existed between the parties. It is this element that is primarily in issue in this case since the existence of a valid marriage is essential to the granting of a divorce and the recovery of alimony. Morgan v. Morgan, 148 Ga. 625, 97 S.E. 675.

When the relationship between the parties begins as an illicit arrangement, the burden is on the party asserting the validity of the marriage to show that the illicit relationship ended and that the parties did actually enter a marriage contract. Drawdy v. Hesters, 130 Ga. 161(4), 60 S.E. 451. In the case of a common law marriage, 'This may be done by . . . such circumstances as the act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and, indeed, all such facts as usually accompany the marriage relation and indicate the factum of marriage. The evidence in each case is for the jury.' Drawdy v. Hesters, supra, 130 Ga. 163, 60 S.E. 452, quoting from Clark v. Cassidy, 62 Ga. 407.

In Foster v. Foster, 178 Ga. 791, 174 S.E. 532, the relationship between the parties began as an illicit relationship similar to the case here. However, in that case no evidence was presented by the party having the burden of proof that a marriage agreement was entered into after the disability had been removed.

In addition, the evidence presented must show a present intent to marry; an agreement to marry in the future is not sufficient. In Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608, the plaintiff testified to their agreement to marry at a future date, but she did not show a present marriage contract as is required by Code § 53-101.

In the case before us the burden of establishing the existence of the marriage was on the plaintiff since she was seeking a divorce and alimony based on the validity of that marriage. W...