Gammelgaard v. Gammelgaard

• Decision Date: 19 June 1956
• Docket Number: No. 48938,48938
• Citation: 77 N.W.2d 479,247 Iowa 979
• Parties: Beulah GAMMELGAARD, Appellee, v. Chris GAMMELGAARD, Appellant.
• Court: Iowa Supreme Court

Page 479

77 N.W.2d 479

247 Iowa 979

Beulah GAMMELGAARD, Appellee, v. Chris GAMMELGAARD, Appellant.

No. 48938.

Supreme Court of Iowa.

June 19, 1956.

William O. Anderson, Estherville, for appellant.

Daniel D. Sanderson, Estherville, for appellee.

THOMPSON, Justice.

The major question involved in the case at bar is factual. It concerns an alleged common-law marriage between the parties, the existence of which the plaintiff asserts and defendant denies. No other form of marriage is claimed; so that plaintiff's case must rest upon proof of the common-law relationship. The burden to establish the marriage is upon the one who asserts it. Pegg v. Pegg, 138 Iowa 572, 576, 115 N.W. 1027, 1029.

Common-law marriages are recognized as valid in Iowa. In re Estate of Stopps, 244 Iowa 931, 57 N.W.2d 221, and cases cited. To establish the existence of such a marriage there must be shown a present intent to be husband and wife, followed by cohabitation. Pegg v. Pegg, supra, at page 575 of 138 Iowa, at page 1028 of 115 N.W.; State v. Grimes, 215 Iowa 1287, 1289, 247 N.W. 664, 665. Proof of cohabitation is not in itself sufficient. In re Estate of Medford, 197 Iowa 76, 78, 196 N.W. 728. But such proof, as well as evidence of conduct and of general repute in the community where the parties reside is admissible as tending to strengthen a showing of a present agreement to be husband and wife, and as bearing upon the question of intent. In re Estate of Wittick, 164 Iowa 485, 493, 145 N.W. 913, 916. These principles of law are well established, and there is no real dispute between the parties concerning them. The fighting point in the case is the plaintiff's assertion that there was a present intent of the parties to be husband and wife, and the defendant's vigorous contention that the evidence fails to establish it. Cohabitation is amply proven.

We turn then to a consideration of the evidence on the question of intent and agreement in praesenti. It will not be possible to analyze in detail all the evidence which the parties adduced as shown by the 220 pages of the record. The trial court, after considering it, was of the opinion plaintiff had shown the necessary elements of a common-law marriage, and entered judgment for her accordingly that she have a divorce from the defendant with alimony and costs, including fees for her attorney. The propositions relied upon for reversal are two: That there was a failure to show a common-law marriage, and that no showing of the financial status of the defendant sufficient to warrant an allowance of alimony was made. There is no contention that the evidence was insufficient to require a divorce upon the pleaded ground of cruel and inhuman treatment such as to endanger life, if there was in fact a marriage relationship.

I. While the burden of proof was at all times upon the plaintiff to establish her case, it must be said the attitude of the defendant as shown by the record falls considerably short of reaching a high standard of commendability. He admits cohabitation with the plaintiff for more than twelve years, and repeated acts of sexual intercourse; but it is his contention that these relations were at all times meretricious, illicit, and lewd. If he is to be believed, the parties from 1940 until almost the end of 1953 lived not only in sin, but in defiance of the criminal laws. He who must defend by pleading moral guilt, by saying 'This woman was not my wife but my mistress' can not expect his position to be applauded. It will not appeal to a court of conscience. True, he may be reflecting merely the actual situation as it existed, and if so, he is entitled to the rights the law gives him. We have said: 'Common-law marriages do exist. Concubinage also exists.' Hoese v. Hoese, 205 Iowa 313, 314, 217 N.W. 860. But, considering the natural inclination of most people to obey the laws both of God and man, it seems a fair conclusion that the courts, in doubtful cases, will prefer that construction of the evidence which finds a legitimate marriage rather than a long period of lewd and criminal cohabitation. See section 725.1, Code of Iowa 1954, I.C.A. The parties here were in all other respects law-abiding citizens; a holding that they were so in their relations with each other, if the evidence warrants it, will be much more in accord with their demonstrated good characters in all other activities. It is a reasonable inference that their natural inclinations would have been to obey the law.

The plaintiff and defendant were married in 1927, and this union continued until 1939, when a divorce was granted to defendant. Plaintiff had previously been married and divorced. By this earlier marriage she had three sons, who made their homes with her and the defendant on a rented farm near Ringsted, Iowa. One son, Thomas, was born to the parties litigant in 1928. After the divorce in 1939 one of plaintiff's sons, Robert, and Thomas remained with the defendant on the farm. Plaintiff operated a cafe in Ringsted for a few months following the separation, then took charge of a rooming house in Emmetsburg. While she was so engaged in April of 1940, she testifies that defendant came to her and proposed marriage, and she accepted. She says that while she could not in 1954, the time of the trial, remember the exact words used, the substance was that they would be husband and wife from that time on; and that the marriage was consummated that night in her home. The defendant denies any such conversation or agreement, but admits acts of intercourse, which he says had continued intermittently from the time of the divorce.

The plaintiff had other employment for short periods in 1940, at or near Harlan and Dubuque. It appears she did not permanently return to the farm home near Ringsted until the late summer or fall of 1940. From that time on the parties lived on the farm until 1951. During this time, while plaintiff contends she was defendant's wife and he asserts she was his housekeeper and concubine, she kept the house, drove a tractor in the fields, hauled manure, helped with the chores, and did other work outside her household duties. In 1951 the defendant held a closing out sale on the farm, purchased a home in Ringsted, and the parties moved there. In July of the same year defendant bought an interest in an implement business in Britt. The plaintiff remained in Ringsted until November, when they rented a house in Britt and lived there until April of 1952, when the lease expired and plaintiff moved back to the home in Ringsted. During this time defendant returned to the home week-ends and at other times, and the parties continued to cohabit as they had before. Defendant paid all the expenses of the establishment. About Thanksgiving of 1953 trouble developed because of real or fancied attentions paid by defendant to other women, and this action resulted in 1954.

It is an obvious impossibility to detail all the evidence adduced or to discuss the many contentions made. Nor would the effort be helpful. Each case of this sort, as in all divorce cases, must depend upon its own facts, and no two will be found exactly alike. The trier of the facts must evaluate them in each case, and precedents are not greatly valuable. Plaintiff's case depends upon her disputed statement concerning the marriage agreement and a number of evidentiary items which tend to support her claim that there was a present agreement for marriage, followed by cohabitation.

It appears that during the period from her return to the farm in 1940 until the separation of the parties in late 1953 there was repeated sexual intercourse. This the defendant admits. They had separate rooms; but plaintiff says this was the same arrangement as before the divorce. The plaintiff performed many services around the farm not ordinarily within the duties of a housekeeper. They went on fishing trips to Minnesota with other couples, and at such times lived together as husband and wife. They stayed at various times on other trips in hotels in Omaha, Red Oak, Sidney, Des Moines, Pomeroy, and Estaline, South Dakota, and on these occasions occupied the same room. The defendant registered at the hotels, undoubtedly in a way which indicated to the hotel managements that they were husband and wife. On one occasion shown by the record he signed the hotel register 'Chris Gammelgaard and Beulah Gammelgaard.' At one time they stayed at the home of a cousin of defendant in Worthington, Minnesota, occupying the same room and bed.

When they left the farm in the spring of 1951, a surprise party was given for them in Ringsted and gifts were offered and accepted. The defendant made a short talk of acceptance and thanks. The affair was reported in the Ringsted Dispatch as a farewell party honoring Mr. and Mrs. Chris Gammelgaard. While living on the farm they had guests in their home who were mostly married couples, and attended dances and other social functions together as a married couple would be much more likely to do than a man and his housekeeper. On one occasion when on a Minnesota fishing trip they purchased a combination 'husband and wife' fishing license. The plaintiff signed defendant's name on this occasion, but in his presence and without any protest and he paid...