Eaton v. Johnston

• Decision Date: 27 April 1984
• Docket Number: No. 55271,55271
• Citation: 681 P.2d 606,235 Kan. 323
• Parties: Jodie E. EATON, formerly Jodie E. Johnston, Appellee, v. Billie Wayne JOHNSTON, Appellant.
• Court: Kansas Supreme Court

Page 606

681 P.2d 606

235 Kan. 323

Jodie E. EATON, formerly Jodie E. Johnston, Appellee, v. Billie Wayne JOHNSTON, Appellant.

No. 55271.

Supreme Court of Kansas.

April 27, 1984.

Syllabus by the Court

1. The three elements of common law marriage are: (1) capacity of the parties to marry; (2) present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public.

2. Where a common law marriage is alleged but judicially held not to exist, the trial court, in the exercise of its inherent power to do equity, is authorized to make an equitable division of the property jointly accumulated by the parties or acquired by either with the intent that each should have an interest therein.

Lester A. Holloway, Wichita, was on the brief, for appellant.

Stephen B. Plummer, of Rumsey, Richey & Plummer, Wichita, argued the cause and was on the brief, for appellee.

McFARLAND, Justice:

This is an action in which defendant Billie Wayne Johnston has appealed from the district court's determination that a common law marriage between defendant and plaintiff Jodie E. Johnston (now Eaton) did not exist and the court's refusal to consider a division of property. The Court of Appeals heard the appeal and affirmed the district court's judgment as to the nonexistence of a common law marriage but reversed and remanded the case for further proceedings relative to division of property. Eaton v. Johnston, 9 Kan.App.2d 63, 672 P.2d 10 (1983). The matter is before this court on petition for review granted to the plaintiff. 234 Kan. --- (January 20, 1984).

We adopt the statement of facts contained in the Court of Appeals opinion as follows:

"Plaintiff and defendant were married December 21, 1957. They were divorced August 3, 1977. Four children had been born of their marriage, one of whom, a son born July 16, 1970, is still a minor and remains in the custody of plaintiff. By the decree of August 3, 1977, much and perhaps most of the property which had been accumulated by the parties was awarded to plaintiff.

"A short period after their divorce was granted, the parties resumed living together and continued to do so for approximately two and one-half years. During this period the parties jointly acquired a house and incorporated their business. On September 4, 1981, defendant conveyed his interest in the house and all of his stock in the corporation to plaintiff. They separated again September 5, 1981.

"Plaintiff filed her petition in this action December 19, 1981, seeking an adjudication that a common law marriage between herself and defendant did not exist, but, in the alternative, if the court should find they were in fact married, that she be granted an absolute divorce, an equitable division of the property of the parties acquired after August 3, 1977, custody of their minor child, and other relief.

"By his answer and cross-petition, defendant alleged the existence of a common law marriage and prayed for divorce, an equitable division of property 'acquired during their marriage,' custody of the minor child, and other relief.

"Following a two-day evidentiary hearing, the court rendered its findings and judgment, 'that the parties are not married and that there was no common-law marriage between them from and after August 3, 1977.' The court then also awarded custody of the child to plaintiff and prescribed visitation rights of defendant. No mention was made of a division of property at that time, nor did either of the parties then seek a further adjudication in that regard. However, the issue was presented in connection with defendant's motion for new trial, which the court denied after concluding since there was no common law marriage, it was 'powerless to move ahead and apportion property.' " 9 Kan.App.2d at 63-64, 672 P.2d 10.

The first issue before us is whether there was substantial competent evidence to support the district court's finding there was no common law marriage between the parties.

We believe the Court of Appeals adequately disposed of this issue and adopt the following portion of the intermediate appellate court's opinion:

"In considering whether reversible error was committed in finding that a common law marriage did not exist, several long-standing rules of appellate review are to be taken into account. A district court judgment is presumed valid and will not be set aside absent an affirmative showing of error by the appellant. First Nat'l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 602, 647 P.2d 1268 (1982). A finding that a party has not sustained its requisite burden will not be disturbed absent an arbitrary disregard of undisputed evidence. Krauzer v. Farmland Industries, Inc., 6 Kan.App.2d 107, 626 P.2d 1223, rev. denied 229 Kan. 670 (1981). Because of the trial court's advantageous position, the appellate court does not retry disputed factual issues nor pass on the credibility of witnesses and the weight to be given each piece of testimony. Driscoll v. Driscoll, 220 Kan. 225, 228, 552 P.2d 629 (1976); Sullivan v. Sullivan, 196 Kan. 705, 708, 710, 413 P.2d 988 (1966).

"Defendant contends sufficient evidence was presented to establish the three elements of common law marriage, i.e. (1) a capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public. In re Estate of Keimig, 215 Kan. 869, 872, 528 P.2d 1228 (1974). The trial court found there was insufficient evidence to support a finding of either the second or third elements. Conflicting testimony was presented on both. Plaintiff consistently denied a marriage agreement with defendant, and denied holding defendant out as her husband after their divorce on August 3, 1977. These denials suffice to support a negative finding against the one having the burden of proof. Driscoll, 220 Kan. at 228 . However, it was also shown that on several occasions defendant asked plaintiff to remarry him; and, during the period they lived together, both parties filed separate tax returns as 'unmarried head of household' or single taxpayers. The evidence also indicated defendant was involved with another woman and told his family of his plans to marry that woman. The trial court did not err in finding a common law marriage did not exist between the parties." 9 Kan.App.2d at 64-65, 672 P.2d 10.

The next matter to be determined is plaintiff's motion for summary disposition on the issue relative to property division.

Supreme Court Rule 7.041 (232 Kan. cxvii) permits summary disposition of an appeal:

"In any case in which it appears that a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision. Such an order may be entered on the court's own motion after ten (10) days' notice to the parties, citing the decision deemed controlling and providing an opportunity to show cause why such an order should not be filed.

"At any time during the pendency of the appeal, any party may move for summary disposition, citing the prior controlling decision. The motion shall be served on opposing counsel who may respond within ten (10) days. Thereafter, the court may enter an order summarily affirming or reversing, or denying the motion."

Plaintiff contends Perrenoud v. Perrenoud, 206 Kan. 559, 480 P.2d 749 (1971), is dispositive of the issue of whether a district court, having found no common law marriage to have existed, may order an equitable division of the property accumulated during the period of cohabitation.

We do not agree. Perrenoud involved a situation where a divorce was granted in California with the plaintiff husband being awarded custody of the minor children who were residing in California with him except when his ex-wife had them for holidays in Kansas. At the end of one summer vacation the wife refused to return the children to California. The husband sought to enforce the California custody order in Johnson County, Kansas, by habeas corpus proceedings. The wife filed for a divorce action in Wyandotte County, Kansas. Perrenoud is clearly not a prior controlling appellate decision on the issue before us and the motion for summary disposition is, accordingly, denied.

We turn now to the final issue which is whether the trial court erred in holding it lacked authority to make an equitable division of the property accumulated by the parties during the post-divorce cohabitation period without benefit of formal or common law marriage.

The Court of Appeals in discussing the issue stated:

"Error is also asserted in the refusal of the trial court to make an equitable division of property.

"It is to be noted that a division of the property accumulated by these parties to the date of their divorce on August 3, 1977, was effected by the decree rendered on that date and, in light of the fact the parties did not remarry, the property division then adjudicated is final and may not now be disturbed. Wallace v. Wallace, 214 Kan. 344, 520 P.2d 1221 (1974); Richardson v. Richardson, 3 Kan.App.2d 610, 599 P.2d 320, rev. denied 226 Kan. 792 (1979). However, we believe the court was in error in not considering and exercising its discretion in directing a division of the property accumulated by the parties during the period they lived together following their divorce. By their pleadings, both plaintiff and defendant sought such relief.

"In the very early case of Fuller v. Fuller, 33 Kan. 582, 586-87, 7 P. 241 (1885), the court considered the effect of a void marriage and stated:

" 'It is our opinion, however, that in all judicial separations of persons who have lived together as husband and wife, a fair and equitable division of their property should be had; and the court in making such division should inquire into the amount each party received while they were living together, and the amount of their joint...