Marriage of Winegard, In re, 58528

• Decision Date: 21 September 1977
• Docket Number: No. 58528,58528
• Citation: 257 N.W.2d 609
• Parties: In re the MARRIAGE OF John Robert WINEGARD and Sally Ann Winegard. Upon the Petition of Sally Ann WINEGARD, Appellee, and concerning John Robert WINEGARD, Appellant.
• Court: Iowa Supreme Court

Page 609

257 N.W.2d 609

In re the MARRIAGE OF John Robert WINEGARD and Sally Ann Winegard.

Upon the Petition of Sally Ann WINEGARD, Appellee, and concerning John Robert WINEGARD, Appellant.

No. 58528.

Supreme Court of Iowa.

Sept. 21, 1977.

Edward W. Dailey Law Offices, Burlington, for appellant.

Larsen, Schalk & Bradfield, Davenport, for appellee.

Heard before MOORE, C. J., and MASON, LeGRAND, REES and UHLENHOPP, JJ.

MASON, Justice.

This appeal was precipitated by an award of temporary attorney fees in protracted and complex dissolution of marriage proceedings in the district court for Des Moines County. Petitioner, Sally Ann Winegard, sought dissolution of her alleged common law marriage to respondent, John Robert Winegard. Respondent denied the existence of said relationship. The district court, pursuant to agreement of counsel, entered an order directing the dissolution action be litigated in bifurcated proceedings with the question of the existence of the marriage to be resolved first. Following a four-day evidentiary hearing, the court concluded a common law marriage relationship had been established. Relying upon that determination, petitioner filed an application for temporary attorney fees. By order dated June 23, 1975, petitioner was awarded temporary attorney fees in the amount of $7,500. Respondent's notice of appeal therefrom was filed July 18.

The following lengthy factual recitation is required in light of the factual character of the issues presented for review herein. Respondent's failure to include in his brief a statement of the relevant facts, as required by rule 344(a)(3), Rules of Civil Procedure (now rule 14(a)(4), Rules of Appellate Procedure), and petitioner's extremely abbreviated factual presentation have made this task much more difficult and have necessitated an extraordinarily detailed examination of the voluminous record made below.

John and Sally, 53 and 30 years of age respectively at time of trial, first met in 1962, shortly after Sally commenced working in the office of John's Burlington business enterprise, Winegard Company. At the time, Sally was single and John was married and the father of two children. At some time in 1964 or 1965 John's first marriage was dissolved. In May of 1963 John and Sally commenced an erratic relationship which ultimately led to the present controversy.

Five months after John and Sally started seeing one another Sally married one Lonnie Anderkin and moved to Ohio. This union produced a child, Wendy Lynn, who was born in September of 1964. This marriage was apparently subjected to more than its share of marital and financial difficulties. At one point, Sally and Anderkin received a $500 loan from John. Subsequently, Sally returned to Burlington and asked John for financial assistance in order to obtain a dissolution of her marriage to Anderkin. Apparently, John gave her $50 on two different occasions which she used to commence two abortive dissolution actions in Iowa. During this period, which apparently was late 1965 and early 1966, John and Sally dated each other and traveled together.

In October of 1966 John accompanied Sally and her daughter to Las Vegas, Nevada, where Sally intended to commence divorce proceedings against Anderkin. Sally's legal and living expenses were paid by John. On December 7 Sally was granted a divorce from Anderkin, who appeared in the proceedings through counsel. During the six-week interval prior to the divorce decree, John divided his time between Las Vegas and Burlington. On the day the decree was issued, John and Sally returned to Burlington and at some point during the trip marriage was proposed by John and declined by Sally.

Upon their return to the Burlington area, John and Sally dated intermittently until February 1967 when Sally returned to Ohio and began living with her ex-husband Anderkin. A few months later, Anderkin went into military service and Sally moved in with his parents. The record is unclear with respect to Sally's activities in the following 15-18 months, but it is clear she married one Frank Gilvin in Dayton, Ohio, on October 31, 1968.

Sally's second marriage was apparently as troubled as her first and she once again returned to the Burlington area with John's financial assistance. Subsequently, John again accompanied her to Las Vegas, paying all expenses involved, and Sally was granted a default divorce from Gilvin on September 3, 1969.

Evidently, upon the divorce from Gilvin, Sally and John returned to Burlington where their relationship became matrimonially inclined. On April 4, 1970, John and Sally entered into an antenuptial agreement whereby, in essence, Sally waived " * * * all statutory or common law rights that she may have as the wife of John during John's lifetime and/or as the surviving spouse in the property or estate of John, * * *." In exchange for said waiver, John agreed to secure insurance on his life in the face amount of $100,000 and to name Sally as primary beneficiary thereof. The agreement stated its execution was prompted by the fact John and Sally " * * * are contemplating marriage and may be married in the near future, * * *." (Respondent's exhibit # 3).

Shortly after the execution of said agreement, John and Sally traveled to Hawaii with the intention of being married there. However, upon their arrival in Hawaii, John told Sally he wanted to delay their marriage plans, explaining he had waited until the day before their departure to tell his daughter of their matrimonial intentions and he felt she needed more time to adjust to the situation. John and Sally returned to Burlington unmarried.

In September of 1970, just a few months after her trip to Hawaii with John, Sally returned to Ohio and renewed her living arrangement with her ex-husband Anderkin. Again, Sally's revived relationship with her former husband only lasted for 3-4 months and she returned to the Burlington area in December of that year.

Following Sally's return, her relationship with John was rekindled and on February 14, 1971, he gave her an engagement ring. On March 29 John and Sally reaffirmed the previously executed antenuptial agreement and left for Las Vegas again with the intention to be married upon their arrival in that city. Once again, however, John and Sally returned to Burlington a few days later without having participated in a marriage ceremony. Apparently, abandonment of their plans was at John's request.

Sally testified at trial that on their return flight John asked if she still wanted to get married and she responded she did. At this point, John placed a wedding band on Sally's finger. Confused about his actions, Sally asked John if they were going to be married upon their return to Iowa. John allegedly responded a marriage ceremony was unnecessary in Iowa and asserted they were "just as much married as anybody else there." Sally expressed concern over what to tell others with respect to their marital status and was directed by John to say they had been married in Las Vegas. In addition, John told Sally she could use his name.

In his version of the events which transpired during their Las Vegas journey, John admitted he intended to be married in that city, but maintained he changed his mind shortly after arriving there. John testified he informed Sally of his decision in their hotel room and there gave her the wedding band. He denied any symbolic significance in the gift of the ring, explaining he was only motivated by the fact he no longer had use for it. In response to Sally's expressed fear of potential embarrassment, John testified he told Sally she could move into his home temporarily and could use his name. He denied telling Sally they were "as much married as anybody else in Iowa," stated he recalled no in-flight conversation concerning their relationship and asserted he clearly told Sally he did not wish to marry her.

Immediately upon her return from Nevada, Sally and her daughter began living with John in his Burlington home. Various individuals were informed by Sally that she and John had in fact been married. John did nothing to deny or dispute his alleged marital relationship with Sally. The couple received wedding gifts from a number of people, including John's mother and brother and John's attorney. John and Sally received mail addressed to and traveled together as Mr. and Mrs. John Winegard. They attended family gatherings and sent out Christmas cards with "John and Sally Winegard" engraved thereon. Sally's picture appeared in the local newspaper and she was referred to therein as Mrs. John Winegard. In addition, Sally was given or had access to numerous credit cards, some of which listed the owner thereof as Mrs. John Winegard.

John and Sally's home life was apparently fairly stable until December 1971, eight months after their Las Vegas trip. At that time, Sally testified she felt John was involved with another woman and confronted him with her suspicions. John confirmed her belief and from that point on the parties' relationship deteriorated. February 6, 1973, Sally's petition for dissolution of marriage was filed.

Following the lengthy evidentiary hearing previously referred to, the district court held John and Sally were husband and wife by virtue of a common law marital relationship. John then unsuccessfully sought leave of this court to bring an interlocutory appeal challenging the trial court's finding a common law marriage in fact existed. Following Sally's application for temporary attorney fees John initiated an unsuccessful federal court action challenging the constitutionality of various Iowa rules of discovery. Upon the resolution of the federal court skirmish, and a related unsuccessful petition for writ of certiorari in this court, and after an evidentiary hearing on Sally's application, the district court order allowing $7,500 for temporary attorney fees to Sally was entered. John's appeal herein challenges that order and...