Green v. Ribicoff
| Decision Date | 31 December 1961 |
| Docket Number | Civ. A. No. 2372. |
| Citation | 201 F. Supp. 721 |
| Parties | Florence Mae GREEN v. Abraham A. RIBICOFF, Secretary of Health, Education & Welfare. |
| Court | U.S. District Court — Southern District of Mississippi |
George E. Estes, Jr., Gulfport, Miss.
Leonard Melvin, Jr., Laurel, Miss., for plaintiff.
Robert E. Hauberg, U. S. Atty., Jackson, Miss.
Edwin R. Holmes, Jr., Asst. Atty. Gen., Jackson, Miss., for defendant.
The record in this case presents a controversy between Florence Mae Green and Ellen Green as to which one is the lawful widow of Willie Green and which one is entitled to the benefits of social security. There is practically no controversy in the testimony, but the record presents strictly a question of Mississippi law.
Florence Mae Green, petitioner, entered into a ceremonial marriage on October 20, 1950, with the deceased wage earner, Willie Green. She and he were married in Smith County, Mississippi, all of which is shown by the certified copy of the marriage records of Smith County. This date of the ceremonial marriage is a crucial one in determining the outcome of this controversy.
Ellen Green, in whose favor the administrative department decided, claims as a common-law wife, and, of course, if there were substantial evidence as applied under the law of Mississippi to support that finding, she would be entitled to the proceeds, but if there is no substantial evidence upon which to base that conclusion, then the petitioner, Florence Mae Green, and her two minor children, are entitled to the proceeds.
The deceased, Willie Green, died January 29, 1958. His first marriage, which was a valid marriage, was to Velma Morgan, in Jones County, Mississippi, July 13, 1936, and this marriage was not dissolved until June 22, 1944. On October 4, 1941, practically three years before the date of the divorce from Velma Morgan, he entered into a bigamous marriage with Ellen Jones in Jones County, Mississippi, and it is the contention of the defendant that Ellen Jones is the widow by virtue of that marriage and the continued relationship between Ellen and the wage earner from time to time until his death. He attempted several other marriages, all of which were void, as will be referred to hereinafter.
The record in this case shows that the only two valid marriages the deceased ever had was his first marriage to Velma Morgan, from whom he was divorced as aforesaid on June 22, 1944, and his last marriage to Florence Mae Green on October 20, 1950, and to which marriage there were two children born, to-wit: Mattie Mae Green on July 8, 1952, in Jones County, Mississippi, and Ellen Patricia Green, born May 4, 1954, in Gulfport, Mississippi. There were two children born to Ellen during the time that she and Willie were living together, but admittedly both of those are illegitimate and Ellen makes no claim to one, as she admits that Willie was not its father. One child was born July 13, 1942, and one July 13, 1944, at a time when Willie was overseas with no access to Ellen, so that without conflict, the child born July 13, 1942, was born at a time when Ellen and Willie were living in adultery, as well as being guilty of bigamy, since he was not divorced from Velma until June 22, 1944. The child that was born July 13, 1944, could not possibly have been begotten or conceived except long before he received his divorce on June 22, 1944. Since the parties all lived in Mississippi, it is conceded that the law of Mississippi will govern.
The Mississippi Supreme Court in quite a number of decisions has passed upon the question here involved, and without conflict in the authorities in Mississippi has answered the questions presented here. These authorities demonstrate very clearly that a ceremonial marriage solemnly entered into supersedes any contention as to a common-law marriage, and the presumption is so strong that a common-law marriage cannot be recognized where there is a subsequent ceremonial marriage. In the case of Warren by Stuckey v. Warren, 218 Miss. 785, 67 So.2d 707, the court said "thus, in order to establish a common-law marriage, all the essential elements of such a relationship * * * must be shown by clear, consistent, and convincing evidence, especially must all the essential elements of such relationship be shown when one of the parties is dead."
In the case of Ridley v. Compton, 215 Miss. 532, 61 So.2d 341, the Mississippi Supreme Court quoted with approval from one of its former cases of Barton v. State, 165 Miss. 355, 143 So. 861, "It, is, of course, among the essentials of a valid common-law marriage that both parties must intend in good faith to live together in the relation of husband and wife, and that the union shall be permanent and exclusive of all others."
"The agreement between the parties must be unequivocal and free from any reservations, mental or otherwise, to the full extent that, when consummated by cohabitation, nothing less than a decree of divorce pronounced by a court of competent jurisdiction can dissolve the relation."
The court in the Compton case further said, "But a claim of common law marriage is regarded with suspicion and will be closely scrutinized, and in order to establish a common law marriage, all the essential elements of such a relationship must be shown to exist."
From these authorities it will be seen that a common-law marriage to be recognized in Mississippi must be entered into in good faith and by agreement of each of the parties that they do solemnly enter into the relationship of marriage, and in addition thereto must cohabit as man and wife and hold themselves out so much publicly that the public in general recognizes them as man and wife. If there be absent either one of these elements, then the relationship is that of adultery.
Under the record in this case it is very clear and distinct that the deceased wage earner never at any time entered into any common-law marriage in good faith with the claimant Ellen. His first relationship with Ellen was in a state of bigamy. Then, the remainder of the time, after the impediment was removed it was a state of adultery. The record shows in this case that after his divorce in 1944 and while he was still in the army that when he returned from the army he assumed his relationship with Ellen without any change at periodic times. Ellen herself admits in her testimony that the relationship did not change but that she and he discussed getting married but never did.
In the case of Bracey v. Bracey, 148 Miss. 688, 114 So. 750, the Mississippi Supreme Court, quoting from a former Mississippi case of Floyd v. Calvert, 53 Miss. 37, and quotes with approval this language from the Calvert case: "When persons, originally at liberty to form a legal or an illegal union, as they prefer, elect the criminal in preference to the lawful relationship, they must be presumed to have continued therein, until some change of intention and wishes is affirmatively shown."
The Bracey case was a contest between brothers and sisters on one side of the controversy, and the alleged common-law wife of the deceased person, and the court there held that the brothers and sisters were entitled to recover.
Where it is shown that the relationship between a man and woman is adulterous in its inception, the presumption is that that relationship continues to exist until it is overthrown by certain proof. As was...
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Coates v. Watts, 91-CV-1403.
...asserting such a claim to promote his financial interest. In re Estate of Fisher, 176 N.W.2d 801, 805 (Iowa 1970); Green v. Ribicoff, 201 F.Supp. 721, 724 (S.D.Miss.1961). The burden is on the proponent to prove, by a preponderance of the evidence, all of the essential elements of a common ......