Jambrone v. David

• Decision Date: 23 January 1959
• Docket Number: No. 34919,34919
• Citation: 156 N.E.2d 569,16 Ill.2d 32
• Parties: Dominic JAMBRONE et al., Appellants, v. Mageed DAVID et al., Appellees.
• Court: Illinois Supreme Court

Page 569

156 N.E.2d 569

16 Ill.2d 32

Dominic JAMBRONE et al., Appellants, v. Mageed DAVID et al., Appellees.

No. 34919.

Supreme Court of Illinois.

Jan. 23, 1959.

As Modified on Denial of Rehearing March 18, 1959.

Rudolph L. Janega, Chicago, for appellants.

Rothschild, Hart, Stevens & Barry, Chicago (Norman J. Barry, Edward I. Rothschild and William G. Myers, Chicago, of counsel), for appellees.

DAILY, Chief Justice.

Appellants, Dominic and Angela Jambrone, on leave granted by this court, appeal from a judgment of the Appellate Court reversing a decree of adoption whereby they were permitted to adopt Pamela Rose Gorra, a child who had been in their custody since five days after her birth. See: In re Petition of Jambrone, 17 Ill.App.2d 104, 149 N.E.2d 406.

The natural parents of the child are Mary Gorra and Mageed David, now residents of Iowa, who were formally married on May 5, 1956, two weeks after the petition for adoption had been filed, but who claim to have been common-law husband and wife when the child was born in Chicago on August 24, 1955, and when the mother gave her consent to the adoption on August 29, 1955. Common-law marriages are recognized in Iowa and, although abolished in Illinois, where such a marriage is recognized under the laws of another State so as to make children of the marriage legitimate, that status of legitimacy will be given recognition in Illinois. Peirce v. Peirce, 379 Ill. 185, 39 N.E.2d 990. Both courts below found that the natural mother, Mary Gorra, then thirty-eight years old, had validly consented to the adoption and such finding is not contested. Likewise, under authorities cited and discussed in the opinion of the Appellate Court, they agreed that our adoption statute does not require the consent of a natural father where the child to be adopted is born out of wedlock. The two courts divided, however, on the question of whether or not there was a valid common-law marriage existing between the natural parents when the child was born and the mother's consent to adoption was given. The trial court in effect concluded that no common-law marriage existed, thus rendering the consent of the father unnecessary, and that it was in the best interests of the child to remain with the adoptive parents. The Appellate Court found exactly to the contrary and reversed the decree of adoption because the consent of the father had not been obtained. Whether or not the evidence established the existence of a valid common-law marriage is the sole question presented for review.

Appellees, Mageed David and Mary Gorra David, point out that the scope of this court's review is confined to questions of law in cases brought to it from the Appellate Court (Ill.Rev.Stat.1957, chap. 110, par. 92(3)(b)) and contend that the Appellate Court's finding of fact with respect to the existence of the common-law marriage is not subject to review. While it is a well settled rule that we will not review the facts as found by the Appellate Court, it is equally true that we may do so when the facts found, in themselves, show as a matter of law a wrong conclusion was reached by that court. Briney v. Illinois Central Railroad Co., 401 Ill. 181, 81 N.E.2d 866; Ruspantini v. Steffek, 414 Ill. 70 110 N.E.2d 198; Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804. Further, it is well established that findings of fact of the Appellate Court may be inquired into by this court where there is no evidence upon which to base such a finding. (Harrison v. Civil Service Comm., 1 Ill.2d 137, 115 N.E.2d 521; City of Chicago v. Hagley, 338 Ill. 479, 170 N.E. 689), and that it is a question of law whether there is any evidence in a record ot support such a finding. Duffy v. Cortesi, 2 Ill.2d 511, 119 N.E.2d 241; Roon v. Van Schouwen, 406 Ill. 617, 94 N.E.2d 880. In the instant case the Appellate Court has concluded that a common-law marriage, valid in the State of Iowa, existed between the appellees. We shall, therefore, consider the facts only to determine if there is any proper evidence or inferences therefrom tending to prove that appellees enjoyed such a status when the child was born and when the consent of the mother was given. Cf. McKenna v. McKenna, 180 Ill. 577, 54 N.E. 641.

Marriage, as is stated in 35 Am.Jur., Marriage, sec. 5, has its inception in contract, and the majority view, adhered to both in Iowa and Illinois, is that marriage is a civil contract in that it is a present agreement, per verba de praesenti, to be husband and wife and assume all the rights and duties of the marital relationship, and in that it is entered into voluntarily by parties who have the capacity to contract marriage. See: Seuss v. Schukat, 358 Ill. 27, 192 N.E. 668, 95 A.L.R. 1461; Beach v. Beach, 160 Iowa 346, 141 N.W. 921, 46 L.R.A.,N.S., 98. At common law no formal ceremony is essential to a valid marriage and, in those jurisdictions where common-law marriages are recognized, an agreement of the parties per verba de praesenti (by words of the present) to be husband and wife constitutes a valid marriage, no other ceremony being necessary. 35 Am.Jr., other ceremony being necessary. 35 Am.Jur., 20. There is, however, a difference of opinion as to the necessity of cohabitation and reputation to establish a common-law marriage. Under one view there need be no cohabitation or reputation but only a contract per verba de praesenti, such view being based on the premise that marriage is a contract relation, and hence that the fact of marriage may be established by proof of a contract only. Such being the case, cohabitation and reputation merely become evidential facts from which the existence of the contract may be inferred. See: 33 A.L.R. 30; 35 Am.Jur., Marriage, secs. 29, 30; Cartwright v. McGown, 121 Ill. 388, 12 N.E. 737. The other view, viz., that cohabitation and reputation are essential to a common-law marriage, is based upon the premise that marriage is a status to which mutual assent is vital, and that such status is not attained until the parties, either through the medium of a ceremonial marriage or by a holding out of themselves as husband and wife, publicly assume such relation. 33 A.L.R. 37, 40. Such a view is further based on the fact that marriage is a contract in which the public is interested and to which the State is a party. Still another form of common-law marriage given some recognition by cannon and common law are marriages per verba de futuro cum copula or, in other words, marriages through carnal intercourse after an agreement to be married in the future, the theory being that copula is presumed to have been allowed on the faith of the marriage promise, and that the parties at the time of the copula accepted each other as man and wife. 35 Am.Jur., Marriage, sec. 35; McKenna v. McKenna, 180 Ill. 577, 54 N.E. 641. According to the McKenna case, however, the latter rule is merely a rule of evidence and it is always competent to show by proof that the fact was otherwise. While copulation is admitted in the present case, there is no proof that it was performed on the faith of a marriage promise, thus a common-law marriage may be sustained only if the contract per verba be praesenti has been proved.

We are concerned here with an Iowa contract, thus we must look to the requirements and decisions of that State in determining whether the Appellate Court properly concluded from the evidence that a valid common-law marriage existed. That the Iowa test is relatively simple is reflected in the following language from Gammelgaard v. Gammelgaard, 1956, 247 Iowa 979, 77 N.W.2d 479, 480: '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.' It is thus to be seen that only the contract per verba de praesenti, followed by cohabitation, need be established and that conduct and reputation are but evidential facts which tend to prove or disprove the agreement and intent of the parties.

When called as a witness in the adoption proceeding Mary Gorra David related that she went to Iowa in April, 1954, and thereafter lived with Mageed David as husband and wife. The testimony of the latter was that, in April, 1954, he had come to Mary's home in Chicago, that they talked it over and 'thought' they wanted to get married, that she thereafter came to his home in Cedar Rapids, Iowa, and that they lived together as husband and wife from April, 1954, to June, 1955. Appellees, who appear to take the position that their accord makes their status irrefutable, urge that the foregoing evidence is sufficient to establish their common-law marriage. While we can perhaps agree that their testimony establishes cohabitation, it does little to confirm that the cohabitation stemmed from a present agreement of the parties to assume the marital duties and obligations of husband and wife. Furthermore, since the State of Illinois, through its concern for the welfare of the child, is an interested party in the adoption proceeding, it is our opinion that our determination of the marital status is not circumscribed by the testimony of the parties claiming marriage, and that we may consider such evidential factors as conduct and reputation in determining if a contract of marriage, per verba de praesenti, did in fact...