Marriage of Gebhardt, In re

• Decision Date: 31 May 1988
• Docket Number: No. 86-1762,86-1762
• Citation: Marriage of Gebhardt, In re, 426 N.W.2d 651 (Iowa App. 1988)
• Parties: In re the MARRIAGE OF Patricia Probert GEBHARDT and Freddie L. Gebhardt Upon the Petition of Patricia Probert Gebhardt, Petitioner-Appellee, And Concerning Freddie L. Gebhardt, Respondent-Appellant.
• Court: Iowa Court of Appeals

Page 651

426 N.W.2d 651

In re the MARRIAGE OF Patricia Probert GEBHARDT and Freddie L. Gebhardt Upon the Petition of Patricia Probert Gebhardt, Petitioner-Appellee And Concerning Freddie L. Gebhardt, Respondent-Appellant.

No. 86-1762.

Court of Appeals of Iowa.

May 31, 1988.

Barry S. Kaplan of Fairall, Fairall, Kaplan & Hoglan, Marshalltown, for respondent-appellant.

Donald J. Juhl, Nevada, for petitioner-appellee.

Considered by OXBERGER, C.J., and DONIELSON and HAYDEN, JJ.

DONIELSON, Judge.

The respondent appeals from a finding by the district court that a common-law marriage existed between him and the petitioner, who has filed for dissolution. We affirm.

Petitioner (Patt) moved into the home of the respondent (Freddie) in 1970 and lived with him continuously for about sixteen years. On March 14, 1986, Patt filed for dissolution of an alleged common-law marriage to Freddie, who denied that such a marriage existed. The action was bifurcated and the only issue tried was whether or not a common-law marriage existed. The court found that it did. Freddie has appealed.

Our scope of review is de novo. Iowa R.App.P. 4. We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R.App.P. 14(f)(7).

The three elements necessary to find a common-law marriage are (1) present intent and agreement to be married, (2) continuous cohabitation, and (3) public declaration that the parties are husband and wife. In re Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979). The burden of proof lies on the party asserting the existence of a common-law marriage. Id. The party carrying this burden of proof must prove all the elements of such a common-law marriage by a preponderance of the evidence. In re Marriage of Grother, 242 N.W.2d 1 (Iowa 1976). Cf. State v. Ware, 338 N.W.2d 707, 711 (Iowa 1983) (proof must be by a preponderance of clear, consistent, and convincing evidence). Proof of cohabitation, as well as evidence of conduct and general repute in the community where the parties reside, tends to strengthen the showing of present agreement to be husband and wife, as well as bearing upon the question of intent. Gammelgaard v. Gammelgaard, 247 Iowa 979, 980, 77 N.W.2d 479, 480 (1956). Newspaper articles and other publications are evidence of a general reputation as bearing on the question of repute. Id. at 987, 77 N.W.2d at 484.

A person may be entitled to marital rights if his or her intention is to be married, even though the other person's intention is not the same, provided they cohabit and provided the conduct of one person justifies the other to believe he or she intended to be married. In re Marriage of Winegard, 257 N.W.2d 609, 616 (Iowa 1977) (citing McFarland v. McFarland, 51 Iowa 565, 570, 2 N.W. 269, 273-74 (1879)). Continuous cohabitation and the declaration of holding out to the public that the parties are husband and wife constitutes circumstantial evidence which tends to create a fair presumption that a common-law marital relationship exists. Id. at 617. Introduction of one party by the other as a wife or husband is in and of itself acknowledgment of marital relation. In re Fisher's Estate, 176 N.W.2d 801, 807 (Iowa 1970).

Freddie agrees with the district court that the facts involved are undisputed. However, in his appeal, he contends that a common-law marriage was found only as a means of avoiding what the court said would otherwise be a "great injustice" to the petitioner. He argues that such a finding constitutes error because the couple did not show a present intent to be husband and wife and did not hold themselves out to the public to be married. In support thereof he relies on the following: (1) the rings purchased in 1974 were not wedding rings as Patt contends, but were merely gifts; (2) the sales bill of their business in 1982 which refered to "Freddie & Patt Gebhardt" was a "mistake;" (3) Patt referred to herself as Patt Probert in 1978 when she saw a physician; (4) the parties filed income tax returns listing themselves as single persons; (5) Patt filled out job applications under the name of Patt Probert, a single person; (6) Patt's title to a recently-purchased vehicle listed Patt Probert as the owner; (7) Freddie conveyed real estate as a single person; (8) Patt purchased stock from under the name of Patt Probert; (9) Patt's driver's license continued to be in the name of Patt Probert; and (10) Patt held herself out to be Patt Probert in a federal lawsuit where she was listed as a defendant.

We have reviewed the other evidence in the record and find, as the district court did, that it clearly and convincingly demonstrated that the parties were holding out to the public that they were husband and wife. The record discloses the following bearing on the existence of a common-law marriage: (1) Patt's intent and belief with respect to her relationship with Freddie; (2) opinions of various witnesses that the community generally regarded the parties as married; (3) continuous cohabitation by the parties for sixteen years; (4) Freddie's acquiescence in Patt's use of his name and her representations to the community that they were married; (5) Patt's receipt of a diamond engagement ring and wedding ring from Freddie; (6) payment by Freddie of charge accounts incurred by Patt as Mrs. Freddie Gebhardt; (7) mail...