Marriage of Grother, In re, 3--58807

• Decision Date: 19 May 1976
• Docket Number: No. 3--58807,3--58807
• Citation: Marriage of Grother, In re, 242 N.W.2d 1 (Iowa 1976)
• Parties: In re the MARRIAGE OF Clifford LeRoy GROTHER and Connie Mae Grother a/k/a Connie Mae Cady. Clifford LeRoy GROTHER, Appellant, v. Connie Mae GROTHER a/k/a Connie Mae Cady, Appellee.
• Court: Iowa Supreme Court

Page 1

242 N.W.2d 1

In re the MARRIAGE OF Clifford LeRoy GROTHER and Connie Mae Grother a/k/a Connie Mae Cady Clifford LeRoy GROTHER, Appellant, v.Connie Mae GROTHER a/k/a Connie Mae Cady, Appellee.

No. 3--58807.

Supreme Court of Iowa.

May 19, 1976.

Lew Eells, Cedar Rapids, for appellant.

Henry Keyes, Keyes & Crawford, Cedar Rapids, for appellee.

Heard by REYNOLDSON, Acting C.J., and LeGRAND, REES, UHLENHOPP and McCORMICK, JJ.

McCORMICK, Justice.

The sole question in this appeal is the sufficiency of proof of a common-law marriage.The trial court found insufficient proof of the marriage and dismissed the action brought by petitionerClifford LeRoy Grother to dissolve his alleged marriage to respondent'Connie Mae Grother a/k/a Connie Mae Cady.'We affirm the trial court.

Since this is an equity case our review is De novo.The burden was on Clifford as proponent of the marriage to prove it by a preponderance of evidence.Cf.In re Estate of Fisher, 176 N.W.2d 801, 805(Iowa1970)('when one party is dead, the essential elements must be shown by clear, consistent and convincing evidence').A claim of common-law marriage is regarded with suspicion and is closely scrutinized.It was necessary for Clifford to prove an intent and agreement In praesenti to be married by both parties together with continuous cohabitation and public declaration that they were husband and wife.In re Estate of Dallman, 228 N.W.2d 187, 189(Iowa1975);In re Estate of Fisher, supra, and citations.

An additional principle is applicable here.Connie moved into Clifford's home in the fall of 1971 and admittedly commenced illicit cohabitation with him before the June 1972 dissolution of his marriage to another woman.When cohabitation is in the beginning illicit, affirmative proof of a subsequent present intention to change that relationship into the legitimate relationship of husband and wife is essential to establish a marriage.In re Estate of Fisher, supra, at 805.

Proof of continuous cohabitation from sometime before June 1972 until Connie moved out of Clifford's home in February 1975 is uncontroverted.The dispute concerns the sufficiency of proof of the parties' intent and agreement to be married and of their public holding out that they were husband and wife.We find the proof insufficient on both issues.

When Connie moved into Clifford's home, she ostensibly did so to act as housekeeper for Clifford and several of his children.He was then separated from his wife.Connie became pregnant in the spring of 1972, several months before termination of Clifford's marriage.She gave birth to the child, a boy, in November 1972.She testified the father of the child is 'Charles Hammon'.The record shows that is a name once used by Clifford as a subterfuge to avoid creditors.

In any event, Connie acknowledges the parties engaged in illicit sexual relations after her pregnancy but before the termination of Clifford's marriage.Sometime after she became pregnant Connie began wearing a ring on the third finger of her left hand.She testified it was a friendship ring she purchased for herself after she became pregnant; Clifford testified it was a wedding ring he gave Connie about a week after termination of his prior marriage, manifesting their intention to be married.

Connie testified Clifford asked her on several occasions to marry him and she refused.He admits she consistently refused to go through a ceremonial marriage.In December 1973he testified in a...