Johnson v. Johnson, 7 Div. 483
| Decision Date | 19 May 1960 |
| Docket Number | 7 Div. 483 |
| Citation | 120 So.2d 739,270 Ala. 587 |
| Parties | Inzer Eugene JOHNSON, Jr. v. Mildred JOHNSON. |
| Court | Alabama Supreme Court |
Pilcher & Floyd, Gadsden, for appellant.
Roy D. McCord and L. D. Martin, Gadsden, for appellee.
This is an appeal by the respondent from a decree of the circuit court of Etowah County, in equity, adjudging complainant and respondent to be husband and wife by virtue of a common-law marriage, granting to complainant (wife) a divorce, giving her custody of the parties' minor son, subject to respondent's right to reasonable visitation, awarding alimony and support for complainant and the child, ordering respondent to pay the medical and hospital bills 'in and about the birth of the expected child of the parties', and awarding a fee for complainant's attorney.
The only question presented on this appeal concerns the sufficiency of the evidence to support that part of the decree adjudging the parties to be husband and wife by virtue of a common-law marriage.
Most of the cases involving common-law marriages which have been reviewed by this court have been brought after the death of one of the parties, usually in connection with the disposition of the decedent's estate. It is not very often that the question arises while both parties are still living and able to testify. The present case is of the latter category. Both parties testified orally before the trial court. There was also documentary evidence bearing on the question whether there was a common-law marriage. Although appellant testified to the effect that there had never been any agreement between him and appellee to enter into the relationship of man and wife, there is ample evidence supportive of the trial court's finding to the contrary. As we see it, the conflicting evidence, and the conflicting tendencies to be drawn therefrom, presented a typical issue of fact to be resolved by the trial court as to whether the essential elements of a common-law marriage were established. On the record before us, considered in the light of the well-recognized presumption in favor of the trial court's finding from evidence taken ore tenus, we are not able to say that the court erred in its holding.
We see no good purpose to be served by discussing and analyzing the evidence in detail. It is sufficient to state, we think, that appellant takes the position that his relationship with appellee was nothing more than concubinage; that he never recognized her as...
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...elements are present, and hence whether a common-law marriage exists, is a question of fact for the jury. Johnson v. Johnson, 270 Ala. 587, 588, 120 So.2d 739, 740 (1960). ¶ 25. In its motions for summary judgment, Clark Sand introduced a plethora of sworn evidence and testimony indicating ......
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