King v. King
| Decision Date | 13 August 1959 |
| Docket Number | 6 Div. 432 |
| Citation | 114 So.2d 145,269 Ala. 468 |
| Parties | Taylor KING, Jr. v. Evelyn Cook KING. |
| Court | Alabama Supreme Court |
Lipscomb & Lipscomb and L. Herbert Etheridge, Bessemer, for appellant.
Ling & Bains, Bessemer, for appellee.
This is an appeal from a final decree granting the appellee, the complainant below, an absolute divorce on the ground of cruelty. Said decree also awarded to appellee, as an allowance of alimony in gross, the one-half undivided interest of appellant in the home of the parties. Attorneys' fees were also awarded the appellee. There were no children.
We will not encumber the opinion with a delineation of the evidence going to show that respondent was guilty of cruelty as charged, since he does not contend here that the evidence was insufficient in that respect.
The main contention of the appellant, the respondent below, is that there was no marriage, hence there could be no divorce and he could not be required to pay alimony and attorneys' fees.
It is without dispute that there was a ceremonial marriage of appellant and appellee on April 12, 1952, under a license duly issued and that they cohabited as man and wife for nearly six years and until, to wit, March 3, 1958. It is also without dispute that on or about the date last mentioned the appellee, Evelyn Cook King, left the home which she and appellant had jointly purchased and which they had occupied for about five years because she had learned that at the time she went through the marriage ceremony with Taylor King a legal impediment existed to that marriage. Taylor King's marriage to Della King had not been dissolved.
The appellee filed a bill to annul her marriage to appellant but she had that bill dismissed when the appellant instituted proceedings to divorce Della. Appellant secured his divorce from Della on March 13, 1958. On that day or shortly prior thereto the appellee, Evelyn Cook King, returned to the house which she and appellant had purchased and she and appellant lived there until the final separation of the parties on Saturday, July 26, 1958, the day on which the acts of cruelty are said to have occurred.
Subsequent to March 13, 1958, the date on which Taylor King was divorced from Della King, no ceremonial marriage was entered into between Taylor King and Evelyn King, but they continued to occupy their home until July 26, 1958, and the trial court found from the evidence taken orally before him that a common-law marriage existed between Taylor King and Evelyn King at the time of their separation.
The conflict in the proof relates to the question of cohabitation as man and wife following the decretal order of March 13, 1958. Appellant insists that while they each lived in their jointly owned house they remained separate; that he had no sexual intercourse with appellee during that period of time and did not look upon or hold her out to the public as his wife. But we are persuaded the decided weight of the evidence, supported we think by reasonable deductions from the undisputed facts, leads to the conclusion that Taylor King obtained the divorce from Della King for the very purpose of removing all doubt or question as to the validity of their ceremonial marriage, which both parties evidently considered entirely regular, and that they continued to live together as man and wife until the separation on July 26, 1958.
It is the well-settled rule that if parties in good faith marry when in fact a legal impediment exists to their marriage, and they continue to cohabit as man and wife after the removal of the impediment to their lawful union, the law presumes a common-law marriage. Barnett v. Barnett, 262 Ala. 655, 80 So.2d 626; Hunter v. Lynn, 256 Ala. 501, 55 So.2d 849; Hill v. Lindsey, 223 Ala. 550, 137 So. 395.
The mere fact that the parties could not get together on the time when and the place where they were to have another ceremonial marriage is not sufficient to overcome the presumption of the common-law marriage and the evidence which we think tends to show that they had an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, which was consummated by their cohabitation as man and wife and by their mutual assumption openly of marital duties and obligations. See Beggs v. State, 55 Ala. 108; Tartt v. Negus, 127 Ala. 301, 28 So. 713; White v. Hill, 176 Ala. 480, 58 So. 444; Hunter v. Lynn, supra; Barnett v. Barnett, supra.
We are clear to the conclusion that the evidence in this record does not show that the parties, or either of them, did not intend to enter into the relation of husband and wife unless there was a formal solemnization of the marriage. Cf. Farley v. Farley, 94 Ala. 501, 10 So. 646; Turner v. Turner, 251 Ala. 295, 37 So.2d 186.
The witnesses were examined in the presence of the trial court and the rule is well settled that a trial court's finding in an equity case upon...
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