Burnett v. Burnett
| Decision Date | 07 December 1963 |
| Docket Number | No. 43361,43361 |
| Citation | 387 P.2d 195,192 Kan. 247 |
| Parties | William Burke BURNETT, Appellee, v. Noema BURNETT, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A common-law marriage may be consummated following a marriage which places one of the parties in violation of G.S.1949, 60-1512, if the parties continue to live together as husband and wife after the expiration of the six months' waiting period.
2. In a proceeding to annul a marriage the trial court should concern itself with the present marital status of the parties and not whether a prior marriage between the parties was void.
Walter F. McGinnis, ElDorado, and Allyn M. McGinnis, ElDorado, and Frank E Daily, Jr., Coldwater, on the briefs, for appellant.
Harold S. Herd, Coldwater, for appellee.
This is an appeal from a judgment annulling a marriage, settling property rights, and allowing attorney fees.
The salient facts, which are not in dispute, will be summarized.
The defendant, Noema Burnett, was divorced from her former husband in Sedgwick County, Kansas, October 14, 1958. On October 26, 1958, the plaintiff, William Burke Burnett, and defendant went through a marriage ceremony in Miami, Oklahoma. Both were residents, and have remained residents, of the State of Kansas. The parties lived together at Wichita until December 1, 1958, when they moved to Colorado. They returned to Kansas April 1, 1959, where they lived on the farm of plaintiff's father. Sometime thereafter the father died and plaintiff inherited a one-half interest in the farm which consisted of some 3000 acres. The parties continued to live together on the farm until December, 1961.
On October 7, 1961, the plaintiff filed his petition for divorce. At this point the record is somewhat confusing. It appears the defendant was supposed to leave the farm on December 1, 1961, but instead the plaintiff left sometime in December. The parties lived together for two days, December 9 and 10, 1961, at a motel in Dodge City. The plaintiff could not remember whether he stayed on the farm with defendant thereafter.
On December 30, 1961, defendant filed her answer to the petition alleging condonement. Later, and on February 21, 1962, plaintiff filed his first amended petition in which he alleged that defendant was incapable of entering into the Oklahoma marriage because her Kansas divorce had not become final.
Thereafter, on a date not disclosed by the record, defendant filed her answer to the amended petition in which she alleged:
'Further answering the Defendant states that since the filing of this action she and the Plaintiff have continued to live together as husband and wife except for a short period during the month of December, 1961, that they have continued to occupy the same home and same bed all said times; that they have made weekend trips together occupying the same bed, and that if the Defendant is guilty of the charges of extreme cruelty and gross neglect of duty, and this she specifically denies, then the Plaintiff has condoned the same and has no grounds for divorce.'
On February 9, 1962, defendant filed an amended answer in which she prayed for a divorce on the grounds of extreme cruelty and gross neglect of duty. On March 20, 1962, defendant filed a cross-petition in which she prayed for a divorce, alimony and a division of property. Plaintiff replied with a general denial. The above quoted allegation was carried in all of defendant's pleadings.
The case proceeded to trial and at the conclusion thereof a colloquy occurred between court and counsel in which the court indicated that it would determine the issue on the invalidity of the Oklahoma marriage. The defendant then requested permission to amend her cross-petition to include an allegation of common-law marriage. Thereupon the court stated:
'I think since we have gone this far with both parties relying on the marriage ceremony contract, I'll overrule the motion to amend at this time.'
Subsequently the trial court rendered judgment annulling the Oklahoma marriage and adjusted the property rights of the parties as on an annulment decree. Thereupon defendant perfect the instant appeal.
In this court the appellant specifies as error, among other matters:
(1) The judgment of the trial court that the Oklahoma marriage was void;
(2) the refusal of the trial court to decree a valid common-law marriage of the parties, and (3) the refusal of the trial court to allow defendant to amend her pleadings so as to allege a common-law marriage, the facts constituting such marriage having been pleaded and proved.
We pass the first question which would require a review and construction of the marriage and divorce laws of Oklahoma.
The marriage status of the parties can be determined under the well-established law of this state. Appellant alleged in her cross-petition:
'That Plaintiff herein and Defendant herein were married at Miami, Oklahoma upon the 26th day of October, 1958, and have lived together as husband and wife since that time. * * *'
The foregoing allegation, although not concluding that a common-law marriage existed, did plead the facts which constitute a common-law marriage.
The fact that the parties lived together as man and wife long after the six months' waiting period following appellant's Kansas divorce, and the divorce had become final, is not disputed.
The appellee testified:
We need not detail all of the evidence which established the common-law marital status. It was admitted. Neither need we review the well-established rules governing the facts and circumstances which establish a common-law marriage. Those interested in the elementary principles are referred to Renfrow v. Renfrow, 60 Kan. 277, 56 P. 534.
This court has held in numerous cases that where the parties continue to live together as husband and wife after the marriage restrictions are removed they become husband and wife in fact under the common-law.
In Smith v. Smith, 161 Kan. 1, 165 P.2d 593, we held:
'Common-law marriages are recognized in this state, even though the circumstances are such as to authorize the prosecution of the parties under G.S.1935, 23-118.
'The fact that the parties entered into a common-law marriage does not...
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In re Kidane
...61 P.3d 68 [2002] ). However, even if Kidane had fully briefed the issue, his argument would fail. Kidane cites Burnett v. Burnett , 192 Kan. 247, 251, 387 P.2d 195 (1963), for the proposition that "[a]nnulment proceedings are equitable in nature and equitable principles should prevail." Al......
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Cairns v. Richardson, 71-1401.
...and wife after the marriage restrictions are removed they become husband and wife in fact under the common-law." Burnett v. Burnett, 192 Kan. 247, 387 P.2d 195, 197 (1963). In this case, the parties continued to live together as husband and wife after the husband's divorce became final and ......
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Dixon v. CertainTeed Corp., Civil Action No. 94-2310.
...actions that demonstrate an intent to end the marriage are invalid unless accompanied by a legal dissolution. Burnett v. Burnett, 192 Kan. 247, 387 P.2d 195, 197-98 (1963). In the instant action, the capacity of the parties to marry is not in dispute. Thus, the court's analysis focuses on e......