Estate of Hall, In re, 89

Decision Date22 May 1990
Docket NumberNo. 89,89
Citation67 Ohio App.3d 715,588 N.E.2d 203
PartiesIn re ESTATE OF HALL. CA 9.
CourtOhio Court of Appeals

Lambe & Burton and Julie A. Lambe, Marietta, for appellant Denise Chancellor.

Randall G. Burnworth, Marietta, for appellee Randall G. Burnworth as adm'r of the estate of Alan Curt Hall.


This is an appeal from a judgment entered on February 3, 1989 by the Washington County Common Pleas Court, Probate Division, denying a motion of Denise Chancellor, appellant herein, filed in the estate of Alan Curt Hall, deceased, to remove Randall G. Burnworth as administrator and appoint her in his place by reason of her status as the common-law wife of the decedent. The following error is assigned:

"The trial court erred by application of the wrong legal standard to the facts because the court viewed common law marriage with disfavor and apparently required a standard of proof greater than clear and convincing."

The following facts pertinent to this appeal, many of which are undisputed, appear in the record, which includes a transcript of proceedings two hundred pages in length embodying the testimony of twenty-two witnesses and forty-nine documentary exhibits for appellant and three for appellee.

Denise Chancellor ("Denise") and Alan Curt Hall ("decedent") were specialists in instrumentation in connection and plumbing and pipefitting and both worked through a plumbers' union. Prior to 1986, Denise and decedent were married to other persons and each had two children as issue of their marriages. In 1986 both Denise and decedent were separated from their respective spouses and began living together in June 1986. Divorce actions were then pending. In August 1986, Denise was divorced from her husband and on January 23, 1987, decedent was divorced from his wife. Thereafter, Denise and decedent continued to reside together and had a close relationship, not only working together but also spending the non-working hours together in social and other activities.

At a family outing on July 4, 1988, tragically, decedent accidentally drowned while swimming. On July 13, 1988, Randall G. Burnworth was appointed administrator of the estate, the application not setting forth the name of a surviving spouse. On August 2, 1988, appellant filed an application to remove appellee and appoint her since she was the common-law spouse and desired to administer the estate.

After hearing, the court issued a decision and judgment entry finding appellant was not married to decedent and denied the removal motion. The decision, inter alia, set forth findings as follows:

"Decedent and Denise started cohabiting in June 1986 [while both decedent and Denise were still married to their former spouses]. They cohabited continuously until decedent's untimely death.

"At no time after decedent's divorce did the parties enter into a civil marriage contract. However, according to Denise, they did plan to participate in a civil marriage ceremony after they finished remodeling decedent's house on the west side of Marietta.

"During the time they lived together they shared expenses. They each had separate checking accounts. Denise at times paid financial obligations which were solely those of the decedent from her own account. Although Denise named the decedent as beneficiary on her individual retirement account, on her private life insurance policy and on her employment life insurance policy, decedent did not reciprocate.

"They were employed at the same job site. They spent a great deal of their work time, as well as their leisure time together. They took vacations together; and while in Florida they purchased a time share interest in a condominium for one week per year. However, they signed the purchase contract in their individual names, making no reference to their marital status.

"They attempted to borrow money in November/December 1987 from the Marietta Savings and Loan Company for the purpose of remodeling decedent's house on the west side of Marietta. In this application, the parties held themselves out as being unmarried.

"On their 1987 federal income tax returns decedent and Denise listed their marital status as 'single' and not as 'married filing singly.'

"In September 1988, Denise filed an application for death benefits as beneficiary of decedent with the Plumbers & Pipefitters Union. On the application she listed herself as beneficiary but did not list herself as decedent's spouse.

"At no time after his divorce from his former wife did the decedent change or attempt to change the name of the beneficiary on any of his life insurance policies or pensions into Denise's name. The decedent in fact is reported to have made statements very near to the time of his death that he would never marry Denise and that he had aspirations of some day reconciling with his former wife.

"Decedent and Denise acted in some respects similarly to the way a married couple would act. Although some of their acquaintances thought they were married, others did not think they were married.

"The court finds that Denise A. Chancellor has failed to prove by clear and convincing evidence that she and the decedent entered a mutual agreement of marriage in the present; that they cohabited as husband and wife; and that they were treated and received as husband and wife in the community in which they lived." (Emphasis sic.)

The law of Ohio respecting establishment of common-law marriage is succinctly summarized in the per curiam opinion of Nestor v. Nestor (1984), 15 Ohio St.3d 143, 145, 15 OBR 291, 292, 472 N.E.2d 1091, 1094, as follows:

"A common law marriage is the marital joinder of a man and a woman without the benefit of formal papers or procedures. Such marriages are not favored in Ohio, but have long been recognized as lawful if certain elements or circumstances are found to be present. Carmichael v. State (1861), 12 Ohio St. 553; Lawrence RR. Co. v. Cobb (1878), 35 Ohio St. 94; Ives v. McNicoll (1899), 59 Ohio St. 402 ; Umbenhower v. Labus (1912), 85 Ohio St. 238 ; Markley v. Hudson (1944), 143 Ohio St. 163 [28 O.O. 81, 54 N.E.2d 304]. See, also, 45 Ohio Jurisprudence 3d (1983) 428, Family Law, Common-Law Marriage, Section 44.

"The necessary elements in order to establish a common law marriage were set forth by this court in Umbenhower, supra. The syllabus provides as follows:

" 'An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law * * *.'

"The fundamental requirement to establish the existence of a common law marriage is a meeting of the minds between the parties who enter into a mutual contract to presently take each other as man and wife. The agreement to marry in praesenti is the essential element of a common law marriage. Its absence precludes the establishment of such a relationship even though the parties live together and openly engage in cohabitation. Although cohabitation and reputation are necessary elements of a common law marriage, this court has previously held that standing alone they do not constitute a common law marriage. In re Redman (1939), 135 Ohio St. 554 [14 O.O. 426, 21 N.E.2d 659].

"The contract of marriage in praesenti may be proven either by way of direct evidence which establishes the agreement, or by way of proof of cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the community in which they reside. However, all of the essential elements to a common law marriage must be established by clear and convincing evidence. Markley v. Hudson, supra, [143 Ohio St.] at 169 [28 O.O. at 84, 54 N.E.2d at 307]; In re Redman, supra, [135 Ohio St.] at 558 [14 O.O. at 428, 21 N.E.2d at 661].

"Where there is no direct proof in reference to the formation of the contract of marriage in praesenti, testimony regarding cohabitation and community reputation tends to raise an inference of the marriage. This inference is given more or less strength according to the circumstances of the particular case. The inference is generally strengthened with the lapse of time during which the parties are living together and cohabitating as man and wife."

No evidence was adduced by appellant of an express agreement in praesenti. However, such is not required and the agreement may be established by inference from other evidence as provided for in Nestor v. Nestor, supra. Appellant sought to establish her claim of common-law marriage based upon the nature and continuing relationship of the parties. There was evidence adduced tending to establish by inference a common-law marriage. While the lower court's factual findings are supported in the record, there was also evidence of open cohabitation, the intermingling of finances, the joint purchase of property and stock, recognition of at least part of decedent's family as to a common-law marriage, including placement of appellant's name on the tombstone as wife, and on occasion the introduction of appellant by decedent as his wife.

The thrust of the argument in support of the assignment of error is that the court below erred in evaluating the evidence by application of a burden of proof greater than that of clear and convincing evidence. Appellant urges this is demonstrated primarily by the court's citation of that portion of In re Redman (1939), 135 Ohio St. 554, 14 O.O. 426, 21 N.E.2d 659, wherein the court stated, "[T]he statutes of Ohio contain definite regulations and requirements and prescribe rigid standards to which applicants for marriage license must conform. While these statutory provisions do not of themself [sic ] specifically prohibit...

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  • Bonnie J. Prince v. Amy M. Lawson
    • United States
    • Ohio Court of Appeals
    • 16 de agosto de 1999
    ... ... Ronnie's only apparent heirs. At dispute is Ronnie's ... estate, which includes his pension and worker's ... compensation benefits. In her complaint, ... common-law marriage. Id.; In re Estate of ... Hall (1990), 67 Ohio App.3d 715, 719. Where there is no ... direct proof of the formation of the ... ...
  • Cyndee L. Balser v. Scott A. Mosley
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    ...69 Ohio App.3d 167, 169. The agreement to marry in praesenti is the essential element of a common-law marriage. In re Estate of Hall (1990), 67 Ohio App.3d 715, 719. absence precludes the establishment of a common-law marriage even though the parties live together and openly engage in cohab......
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    ...that Mr. Ball has failed to establish that the trial court's denial of his motion to suppress was incorrect. See In re Estate of Hall, 67 Ohio App.3d 715, 720 (4th Dist.1990) ("It is appellant's burden, as a basic principle of appellate review, to affirmatively demonstrate in the record the......
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    ... ... clear and convincing evidence. In re Estate of Hall ... (1990), 67 Ohio App.3d 715. To prove a common law marriage, ... the ... ...
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