Maxfield v. Maxfield

• Decision Date: 05 May 1953
• Docket Number: No. 35511,35511
• Citation: 258 P.2d 915
• Parties: MAXFIELD v. MAXFIELD.
• Court: Oklahoma Supreme Court

Page 915

258 P.2d 915

MAXFIELD v. MAXFIELD.

No. 35511.

Supreme Court of Oklahoma.

May 5, 1953.

Supplemental Opinion July 14, 1953.

SYLLABUS BY THE COURT.

1. Where a party appealing complains of an error of law occurring before the trial of the action and it appears that the alleged error was not assigned in the motion for new trial, the same will not be considered on appeal.

2. In order to constitute a valid 'common law marriage', it is necessary that there should be an actual and mutual agreement to enter into the matrimonial relation, permanent and exclusive of all others, between parties capable of making such a contract, consummated by their cohabitation as man and wife, or by their mutual assumption openly of marital duties.

3. Where the right of a party to the relief sought is dependent upon the existence of a so-called common law marriage, the burden is upon such party to establish the facts essential to constitute such marriage.

4. In a case of purely equitable cognizance this court will examine the entire record and weigh the evidence, but will not reverse the judgment of the trial court unless it be against the clear weight of the evidence.

Mart Brown, Clark Hurd, Oklahoma City, for plaintiff in error.

Miskovsky & Miskovsky, Leon S. Hirsh, Oklahoma City, for defendant in error.

CORN, Justice.

This is an appeal by defendant from a judgment rendered in an action brought by plaintiff to secure a decree of divorce, and for other relief, based upon an alleged common law marriage. An unduly voluminous record made up of sharply conflicting testimony, and containing innumerable exhibits of doubtful value, precludes a concise statement of the matters relative to each party's theory of the case. Disregarding numerous motions, applications and proceedings not particularly germane to the issues to be considered, examination of this record reflects the following matters.

These parties were married in 1933 and were the parents of one daughter, aged 13 when this action was filed. Their residence was at Hereford, Texas, where defendant had extensive farming and ranching interests. In 1944 they were divorced in that state, and a property settlement was effected whereby plaintiff received the home, $500 in cash and $50 per month for child support during the nine months of each year for which she had custody of the child. Defendant continued to live in Hereford, Texas while carrying on his business activities there, but spent considerable time in Amarillo, Texas and in Oklahoma City, where he usually stayed in his mother's home. Defendant importuned plaintiff to return to him and a reconciliation was effected, the parties finally agreeing to resume the marital relationship as husband and wife. Plaintiff sold her home and the family returned to Oklahoma City, where they registered at an apartment hotel as husband and wife, in February, 1949. Defendant continued to handle his business affairs and at times stayed in an Amarillo hotel for varying periods while looking after his affairs. The parties moved from the hotel to an apartment, but following the daughter's return from a vacation camp defendant purchased a residence in an exclusive neighborhood in Oklahoma City and a home was established. Because of defendant's alleged intemperate habits, emotional instability and cruel treatment the plaintiff brought this action December 15, 1949, seeking a divorce from the parties' consensual marriage.

The petition alleged substantially the foregoing facts, and that plaintiff had advanced defendant $10,000, which he used in purchasing the home, title to which was in his name; that defendant was worth over $100,000 and asked an order restraining him from selling or encumbering his property. Plaintiff asked a decree of absolute divorce, custody of the child, and reasonable support money and for the family home to be set over to her, permanent alimony, temporary attorney fees and suit money.

It further appears that on July 15, 1950, plaintiff filed petition in the district court of Oklahoma county seeking to set aside the property settlement rendered by the Texas court in 1944. Therein it was alleged that defendant obtained $10,000 from the plaintiff through duress and fear, that $1,500, thereof was repaid, but defendant had refused to repay the remainder; defendant had forced his attentions upon her, causing fear for her life and impairing her health, as well as having a disturbing influence upon the child. Plaintiff asked that defendant be restrained from coming into contact with her and the child; to have the property settlement vacated and an equitable part of defendant's estate set over as alimony, as well as having an additional portion placed in trust for the minor's benefit. A similar petition was filed in the district court in Texas where the divorce had been granted in 1944.

During trial of the present case defendant urged the allegations of such petitions, made subsequent to date of the alleged common law marriage, reflected a relationship devoid of the requisite elements of a recognizable common law marriage following the Texas divorce. This argument provides the basis for the contention that plaintiff is estopped to assert the existence of a common law marriage.

Defendant answered by general denial, and by specific denial of any cohabitation, resumption of marital relationship, or agreement to such effect. Further, that the Texas divorce effected a complete settlement of all property rights and such decree was entitled to full faith and credit, and plaintiff's efforts to set same aside estopped her to assert a resumption of the marital relationship. Upon trial the Texas proceedings were admitted in evidence showing same had been dismissed with prejudice.

Plaintiff replied by denial of all affirmative matters set out in the answer. After trial, and upon defendant being allowed to amend his answer to conform to the proof, plaintiff was permitted to amend her reply to conform to the proof, it being shown such dismissal 'with prejudice' was procured by fraud upon the Texas court; and, both petitions filed by plaintiff had been dismissed without prejudice prior to trial of this action.

A brief narrative of plaintiff's evidence shows that following the Texas divorce defendant frequently visited plaintiff and besought her to return to him, and once sought the services of a minister in an effort to effect reconciliation. In 1949 plaintiff succumbed to his importunities and agreed to return to defendant. He handled the arrangements for sale of the home, and arranged the move back to Oklahoma City, and on February 15, 1949, they began the return trip. Plaintiff acceded to defendant's urgings and they resumed marital relations. Shortly after arrival they secured accommodations in an apartment hotel where they registered as a family, and impressed all who observed them as husband and wife. The daughter was enrolled in a school where defendant was known to the principal, and defendant made no effort to negative the impression they actually were husband and wife.

At a later date they called on the principal of an exclusive denominational school, to enroll their daughter as a student, and defendant introduced plaintiff as his wife. During the summer a family disturbance resulted from plaintiff's mentioning the Texas property settlement and defendant returned to his Texas ranch. However, they were in touch with one another, and during this period and at defendant's request the plaintiff deposited $10,000 with defendant's brokers to assist him in his market investments. While defendant was in Texas plaintiff moved from the apartment hotel and rented an unfurnished apartment, but lived in the home of defendant's mother. During absence from Oklahoma City defendant, apparently handling his business, was registered in different hotels in several cities.

The parties previously had discussed purchasing a home, and upon defendant's return in August, 1949, he bought a residence in an exclusive addition, taking title to the property in his name. He made all necessary arrangements, purchased additional household goods, and effected all normal and necessary arrangements for establishing a home, including moving of his personal effects to this residence. The parties attended church meetings and school affairs together, and generally conducted themselves as husband and wife, so as to exclude any contrary idea. When in Oklahoma City defendant spent most of his time at this residence, although on some occasions he stayed at his mother's home. Following the final separation defendant sought to have plaintiff go through a ceremonial marriage, but this led to an altercation which resulted in plaintiff having to flee from the home. The evidence also showed defendant was addicted to the use of alcohol, and was emotionally immature and unstable.

There was ample testimony from numerous disinterested witnesses, corroborating plaintiff's testimony that the parties held themselves out to the public as husband and wife. Unfortunately it became necessary to introduce the evidence of these parties' young daughter, and her evidence fully corroborated the other evidence in many particulars, particularly as concerns the issue of cohabitation and that they lived as a family unit from the time of their return to Oklahoma City.

A great deal of the record is devoted to the matter of defendant's worth, and his financial statements for the years 1946-1950 were produced in evidence. Defendant attempted to establish that despite such financial statements he was heavily obligated, unable to borrow additional operating capital, and that in reality was worth nothing like the amount indicated by the evidence. It was shown that, at the time of trial, defendant had liquid assets of approximately $100,000, and a probable net worth of approximately $400,000, excluding the value of a growing wheat crop.

Other than admitting having borrowed $10,000 from p...