Gathright v. Smith

• Decision Date: 31 October 1977
• Docket Number: No. 13369,13369
• Citation: 352 So.2d 282
• Parties: Louis A. GATHRIGHT, Plaintiff-Appellee, v. Talmadge A. SMITH and Margie A. Lawrence, Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 282

352 So.2d 282

Louis A. GATHRIGHT, Plaintiff-Appellee, v. Talmadge A. SMITH and Margie A. Lawrence, Defendants-Appellants.

No. 13369.

Court of Appeal of Louisiana, Second Circuit.

Oct. 31, 1977.

En Banc. Rehearing Denied Dec. 5, 1977.

Paul H. Kidd, Monroe, George M. Strickler, Jr., New Orleans, for defendants-appellants Talmadge A. Smith and Margie A. Lawrence.

Hamilton, Carroll & Miller by Orlando N. Hamilton, Jr., Oak Grove, for plaintiff-appellee.

Before BOLIN, PRICE and HALL, JJ.

PRICE, Judge.

This is an appeal by defendants from a judgment declaring the marriage of their mother to plaintiff null and void and rejecting defendants' claims to property acquired during the disputed relationship because of the bad faith of their mother in contracting the marriage.

Plaintiff, Louie Gathright, brought suit for a declaratory judgment against Margie Smith Lawrence and Talmadge A. Smith who are the only children and heirs of Clara Pearl Breland Smith (also known as Clara Gathright). He alleged that at the time of his marriage to Clara Smith she was not divorced from either of her two former husbands and was not capable of contracting a valid marriage with him. Plaintiff alleged he was unaware of this incapacity until after her death on January 14, 1973. He further alleged the decedent was in bad faith in contracting the marriage with him, and under La.C.C. Art. 118 she was not entitled to the civil effects of the marriage. Accordingly plaintiff contended the defendants had no rights of ownership in any of the property acquired during the existence of the null relationship.

Defendants denied the nullity of the marriage and sought to show that in any event their mother was a good faith putative wife entitled to the civil effects of the marriage.

The facts show that prior to decedent's marriage to plaintiff in 1942, she had contracted two former marriages. The first to Alexander F. Smith in St. Tammany Parish on April 20, 1920. Defendants were born of this marriage. Shortly after the birth of the second child, decedent and Smith separated. Smith did not obtain a divorce from decedent until March 13, 1963, in Orleans Parish.

On November 4, 1930, decedent purported to marry John Turner in Arkansas and lived with him until 1933 or 1934 when they separated and decedent established her residence in Bastrop, Louisiana. The evidence clearly establishes that on August 12, 1942, when decedent married plaintiff both Alexander Smith and John Turner were living and neither was divorced from decedent.

In a comprehensive opinion, the trial judge held that decedent was in bad faith under La.C.C. Arts. 117 and 118, and declared plaintiff to be entitled to the sole ownership of all property acquired during the null marriage to her.

Defendants on this appeal allege five specifications of trial court error: first, in placing the burden of proving good faith on defendants; second, in upholding plaintiff's contention he was in good faith; third, in requiring an unconstitutional burden of proof; fourth, in holding that burden was not met; and fifth, in failing to recognize the Louisiana property was co-owned by decedent.

I. APPLICATION OF BURDEN OF PROOF

Defendants contend that the trial court should have required plaintiff to prove their mother's bad faith instead of placing upon them the burden of proving their mother's good faith. Defendants contend that Lands v. Equitable Life Assurance Society of U. S., 239 La. 782, 120 So.2d 74 (1960) places the burden of proof on the party attacking the validity of a marriage. In Lands the court formulated a burden of proof for the party attempting to establish the nullity of a marriage, but the court did not reach the issue of whether the civil effects should flow from the null marriage. In the facts before us, plaintiff has met his burden of proving a null marriage. However, once a null marriage is proven, the burden of proving good faith in a putative marriage situation shifts to the party who contracted the null marriage in contravention of a prior, undissolved marriage. See Succession of Choyce, 183 So.2d 457 (La.App. 2d Cir. 1966), writ denied, 184 So.2d 735, and Succession of Davis, 142 So.2d 481 (La.App. 2d Cir. 1962).

II. PLAINTIFF'S GOOD FAITH

Defendants argue that plaintiff cannot be in good faith under C.C. 117 and 118 since he merely relied on decedent's statement that she was no longer married, citing Prieto v. Succession of Prieto, 165 La. 710, 115 So. 911 (1928). Plaintiff contends his belief was based on more than the mere declaration of decedent. The record shows that after decedent and John Turner separated in 1934, she moved to Bastrop in 1936. She held herself out to the community as a single woman. She bought real property in June 1936 by deed which stated she was divorced from her former husband, John Turner. In December 1936, she sold real property by deed which stated she was twice married, that her first husband was deceased, and her second husband divorced. Approximately four years later she met plaintiff, whom she subsequently married after a two year courtship. Plaintiff had the benefit of both the community reputation and the public records that decedent was legally single. This constitutes a sufficient basis for plaintiff to justifiably and reasonably believe that there were no legal impediments to the subsequent marriage.

III. UNCONSTITUTIONALITY OF STRICT AND CONCLUSIVE BURDEN OF PROOF

The trial court held that because decedent was in bad faith, no civil effects could flow in her favor under C.C. Art. 118. Therefore, in order to prove her one-half undivided ownership in the property acquired during the null marriage, defendants had to prove by "strict and conclusive" proof that decedent contributed to the funds used to purchase the property, and that the source of the funds must have been obtained independently from the concubinage relationship or common endeavor with plaintiff. Defendants contend this burden of proof is unconstitutional and a denial of equal protection since it does not apply to men. Plaintiff opposes our consideration of this question as he contends that the constitutional issue cannot be brought up on appeal because it was not pleaded in the trial court, citing Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971) and the cases cited therein. Defendants point out that these cases concern the pleading of the unconstitutionality of a statute; whereas, this case merely attacks the unconstitutionality of a burden of proof rule. They further assert that La.C.C.P. 2164 allows this court to render whatever judgment is equitable, and therefore, allows us to consider this constitutional question. Our research uncovers no cases which directly distinguish between a constitutional statute and a constitutional issue. In Sonier v. Louisiana Power & Light Co., 293 So.2d 24 (La.App. 1st Cir. 1974), plaintiff alleged the issue of unconstitutionality for the first time in the appellate court. Plaintiff complained that the method of selecting the jury was unconstitutional because of the alleged exclusion of women. Plaintiff did not contend that any statute or ordinance was unconstitutional. The court without discussion cited Summerell v. Phillips, supra, and stated that "questions of constitutionality" raised for the first time on appeal are precluded from consideration. The principle underlying this preclusion rule is based on rules of pleading. In Summerell, supra, the court stated the unconstitutionality of the statute or ordinance will not be heard unless it "is specially pleaded and the grounds particularized." See Causey v. Opelousas-St. Landry Securities Co., Inc., 192 La. 677, 188 So. 739 (1939). Any plea of unconstitutionality...