Jolley v. Jolley

• Decision Date: 24 March 1975
• Docket Number: No. 32971-74-492,32971-74-492
• Citation: Jolley v. Jolley, 46 Ohio Misc. 40, 347 N.E.2d 557 (Ohio Ct. Com. Pl. 1975)
• Parties: , 75 O.O.2d 350 JOLLEY v. JOLLEY.
• Court: Ohio Court of Common Pleas

Page 40

46 Ohio Misc. 40

347 N.E.2d 557, 75 O.O.2d 350

JOLLEY v. JOLLEY.

No. 32971-74-492.

Court of Common Pleas of Ohio, Crawford County.

March 24, 1975.

Petri, Hottenroth & Garverick, and Lowell B. Garverick, Galion, for plaintiff.

Myers, Spurlock, Sears & Pry and Robert B. Spurlock, Bucyrus, for defendant.

CARROLL, Judge.

Mary June Jolley was married to George E. Jolley on December 12, 1965, in Crestline, Ohio. On August 27, 1970, they were divorced in the Common Pleas Court of Crawford County.

Thereafter, in 1971, the parties began to date, and, in accordance with the complaint filed in this case, the plaintiff claims that on April 158 1971, plaintiff and defendant began to live together and hold themselves out as Mr. and Mrs. Jolley or man and wife; however, in the evidence, the plaintiff claims that this happened on January 15, 1971, when the defendant moved in to live with the plaintiff.

At the time of the divorce the plaintiff was restored to her former surname of McClure but only used it part of the time. The parties did live together and occupy the same bedroom.

The plaintiff called as a witness her son who testified that he lived with the Jolleys from May 1971 to April 1973. He assumed that they were married. He also testified that mail came as Mrs. June Jolley or Mr. and Mrs. George Jolley.

She next called a Mrs. Cover, secretary to the principal of Galion High School, who testified that she knew the plaintiff as Mrs. June Jolley, and she addressed mail to them as Mr. and Mrs. George Jolley and also heard Mr. Jolley introduce her as Mrs. June Jolley. She was not sure whether he said she was his wife.

Mina Moyer said she knew them eight to ten year and she was very positive in her testimony that she heard Mr. Jolley introduce the plaintiff at the club as his wife, and she testified that she knew that they bought this trailer together and further that he signed as man and wife at a convention they attended. However, when asked, she was very positive as to how they registered and so forth, that is, as man and wife rather than Mr. and Mrs. George Jolley, which seemed to this court as incredible that she could have known this without actually looking at the register herself.

Plaintiff next called her daughter who testified as to grounds for a divorce of the common law marriage. She did not furnish much other enlightening evidence as to the relationship of the parties except that she knew her mother as Mrs. Jolley.

Charles McClure took the stand and testified that he was the son of June Jolley and that he worked at Peadbody and that he was known as the stepson of George Jolley.

Mrs. Jolley then took the witness stand and testified that she usually went under the name of Mrs. George Jolley except in several cricumstances. She testified that she packed his lunch and did laundry for him and occupied the same bed, but both kept separate accounts.

In 1972 she had an operation, and she testified that he claimed her on his insurance policy at Peabody as his wife and she said that she was recognized as Mrs. George Jolley. She testified that she filed income tax return in 1972 as Mrs. June Jolley and the last year they were married they filed separate returns. She stated that the defendant filed separately every year and on his returns he filed as a single person.

The court finds this in no place in the plaintiff's testimony or in any testimony of plaintiff's witnesses did she ever claim that there was any special agreement between herself and the defendant whereby they agreed to be husband and wife from that certain day forward and the they would live together for the rest of their lives as such.

All the testimony was directed as to their living as Mr. and Mrs. George Jolley and in a few incidents only did anybody testify that he said she was his wife. However, in 1971, it was shown that they purchased a housetrailer together and it was also stated that defendant had his hospitalization insurance at the shop shown as being married and claiming the plaintiff as his wife on said policy.

The defendant called Bernice Miller who testified to the fact that plaintiff and defendant were not living together as man and wife but that he called her on occasion June Jolley or June McClure. She further testified that the plaintiff and the defendant both told her that they were not married.

The mother of the defendant testified that the plaintiff said to her that she was not married to the defendant. She said that plaintiff complained that he went out with some other ladies and that she could do nothing about it because she was not married to him.

The sister of the defendant testified that plaintiff said they were not married.

Nancy Neumann took stand and testified that on New Year's it appeared that plaintiff was having as affair with another man.

Defendant took the stand and testified that he did not enter into any agreement of marriage and never agreed to enter into such an agreement and that the only thing said was that they would live together and he would pay the expenses and so forth, and that she was to be his housekeeper and nothing more. He also testified that plaintiff had been married four times previously and in cross-examination of plaintiff she admitted the former marriages and that in each one they went through the formal requirements of a regular marriage and that she knew all the requirements. She also stated that she knew the requirements for a common law marriage which were to live together and to hold yourself out as man and wife in the community and to love the defendant and take care of him.

CONCLUSION OF LAW

The court finds that to establish a common law marriage the following elements must be proven by clear and convincing evidence:

1) An agreement to marry in praesenti,

2) made by parties competent to contract,

3) accepted and followed by cohabitation as husband and wife, and

4) with the result that they were treated and reputed as husband and...