Kennedy v. Damron
| Decision Date | 12 March 1954 |
| Parties | KENNEDY v. DAMRON et al. |
| Court | United States State Supreme Court — District of Kentucky |
R. Campbell Van Sant, Frankfurt, Francis M. Burke, Pikeville, for appellant.
Joe Hobson and S. C. Ferguson, Prestonsburg, for appellees.
CULLEN, Commissioner.
Eula Mae Kennedy (Damron) sought a share in the estate of J. R. Damron, deceased, on the ground that she was his widow. The court found that she had not been married to J. R. Damron, either by a ceremonial or common-law marriage, and she now appeals from a judgment denying her claim.
Eula Mae undertook to establish that she had entered into a ceremonial marriage with Mr. Damron in West Virginia, in 1940. However, she was unable to produce any evidence to support this claim, other than her own testimony. The evidence for the other side is quite convincing that no such marriage took place. On this appeal her counsel frankly state that they are not relying upon the alleged West Virginia marriage, but upon a common-law marriage claimed to have been consummated in Ohio in 1950.
The evidence shows that Eula Mae and Mr. Damron commenced a clandestine relationship in 1937, in West Virginia, when Mr. Damron was married to another. In 1939, Mr. Damron's wife obtained a divorce and he and Eula Mae then moved to Kentucky, where they lived together secretly until late in 1940, when Mr. Damron's mother died. Thereafter, until the spring of 1949, they lived together openly in Kentucky, and there is evidence that during this period they held themselves out to the public as man and wife. In 194., Mr. Damron and his brother-in-law purchased a farm in Ohio, and the brother-in-law took occupancy of the main dwelling on the farm. Mr. Damron and Eula Mae visited the farm from time to time during 1949 and 1950, and during part of this time they lived in a converted chicken house on the farm. There was evidence that during the last nine months of 1950 they spent more time in Ohio than in Kentucky, but ordinarily they did not spend more than one week at a time in Ohio, and they never spent more than one month at a time in Ohio. In 1951 they remained in Kentucky, where Mr. Damron died in December 1951.
During the period Mr. Damron and Eula Mae were visiting and living at the farm in Ohio, Mr. Damron continued to maintain his dwelling in Kentucky. He did not have the utilities cut off, and he arranged with a neighbor to look after the house and receive the mail. He and Eula Mae left most of their clothing in the Kentucky dwelling, taking to Ohio only enough for their temporary needs. He continued to vote in Kentucky and do his banking there. He also continued to maintain a post office box in Kentucky, and during 1950 he maintained a garden in connection with his Kentucky dwelling.
Under the evidence, the chancellor clearly was correct in finding as a fact that Mr. Damron and Eula Mae never became residents of Ohio. Accordingly, Travers v. Reinhardt, 205 U.S. 423, 27 S.Ct. 563, 51 L.Ed. 865, so confidently relied upon by counsel for Eula Mae, is not applicable. In that case, the parties had established a permanent residence in a state in which common-law marriages were valid. Likewise inapplicable are the Ohio cases of Dibble v. Dibble, 88 Ohio App. 490, 100 N.E.2d 451, and Markley v. Hudson, 143 Ohio St. 163, 54 N.E.2d 304, because in both of these cases the parties had established a domicile in Ohio.
The Dibble case, cited above, holds that an agreement of marriage, which is essential to establish a common-law marriage in Ohio, may be implied from the conduct of the parties in holding themselves out to the public as man and wife in the community in which they reside. The case further holds that a valid common-law marriage may be established between a man and woman even though their original relationship was meretricious or illicit. However, it appears that both holdings were predicated upon the existence of a domicile in Ohio. It seems obvious that if the conduct and reputation of the parties as man and wife are to be accepted as evidence of a contract of marriage entered into in a state which recognizes common-law marriages, the conduct must be carried on and the reputation acquired in the...
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