Nestor v. Nestor

Decision Date31 December 1984
Docket NumberNo. 84-450,84-450
Citation472 N.E.2d 1091,15 Ohio St.3d 143,15 OBR 291
Parties, 15 O.B.R. 291 NESTOR, Appellant, v. NESTOR, Exr., et al., Appellees.
CourtOhio Supreme Court

Edward C. Maher, Akron, for appellant.

Dean Konstand, Akron, for appellees.

PER CURIAM.

A common law marriage is the marital joinder of a man and a woman without the benefit of formal papers or procedures. Such marriages are not favored in Ohio, but have long been recognized as lawful if certain elements or circumstances are found to be present. Carmichael v. State (1861), 12 Ohio St. 553; Lawrence RR. Co. v. Cobb (1878), 35 Ohio St. 94; Ives v. McNicoll (1899), 59 Ohio St. 402, 53 N.E.2d 60; Umbenhower v. Labus (1912), 85 Ohio St. 238, 97 N.E. 832; Markley v. Hudson (1944), 143 Ohio St. 163, 54 N.E.2d 304 . See, also, 45 Ohio Jurisprudence 3d (1983) 428, Family Law, Common-Law Marriage, Section 44.

The necessary elements in order to establish a common law marriage were set forth by this court in Umbenhower, supra. The syllabus provides as follows:

"An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law * * *."

The fundamental requirement to establish the existence of a common law marriage is a meeting of the minds between the parties who enter into a mutual contract to presently take each other as man and wife. The agreement to marryin praesenti is the essential element of a common law marriage. Its absence precludes the establishment of such a relationship even though the parties live together and openly engage in cohabitation. Although cohabitation and reputation are necessary elements of a common law marriage, this court has previously held that standing alone they do not constitute a common law marriage. In re Redman (1939), 135 Ohio St. 554, 21 N.E.2d 659 .

The contract of marriage in praesenti may be proven either by way of direct evidence which establishes the agreement, or by way of proof of cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the community in which they reside. However, all of the essential elements to a common law marriage must be established by clear and convincing evidence. Markley v. Hudson, supra, at 169, 54 N.E.2d 304; In re Redman, supra, at 558, 21 N.E.2d 659.

Where there is no direct proof in reference to the formation of the contract of marriage in praesenti, testimony regarding cohabitation and community reputation tends to raise an inference of the marriage. This inference is given more or less strength according to the circumstances of the particular case. The inference is generally strengthened with the lapse of time during which the parties are living together and cohabitating as man and wife.

Where there is direct evidence concerning the formation of the contract of marriage in praesenti and a finding by the court, as here, that such a contract exists, the evidence of long-time cohabitation and reputation of living together as man and wife should be given even greater weight to further strengthen the inference of marriage.

As to the element of cohabitation, there must be proof that the parties had sexual activity in the open manner of husband and wife in a marital state. Secret cohabitation with its attendant indicium of concealment concerning the sexual activity of the parties will not suffice as evidence of a valid common law marriage.

As to the element surrounding the reputation of the parties in the community as being man and wife, in order to establish a common law marriage it is not necessary that they disseminate information to all society generally, or to all of the community in which they reside. Rather, there must be a holding out to those with whom they normally come in contact. A common law marriage will not necessarily be defeated by the fact that all persons in the community within which the parties reside are not aware of the marital arrangement, nor by the fact that all persons with whom they normally come in contact are also unaware of the arrangement.

In the instant case, the parties did not raise, either in the appellate court or in this court, a question as to the existence of the contract of marriage in praesenti. As previously stated, the trial court found that the parties entered into a contract to marry on July 1, 1970. Due to this finding, appellant takes the position that there is no need to determine whether the other elements are present herein in that such elements are only matters of proof to be offered in a particular case where there is no direct evidence to show the existence of the marriage agreement. We are unable to agree with this portion of appellant's argument.

There is a noted difference among authorities as to whether evidence of the remaining elements which constitute a common law marriage, cohabitation and a reputation in the community as being husband and wife, is necessary when there exists direct proof of a contract of marriage in praesenti. 45 Ohio Jurisprudence 3d (1983) 437, Family Law, Common-Law Marriage, Section 51. This cited article states that some authorities follow the view that cohabitation and reputation are not necessary to the establishment of a common law marriage, but are only evidentiary facts from which the existence of the contract may be inferred. 1

Although there has been some case law to the contrary in Ohio, 2 this court has consistently required proof of both cohabitation and reputation following the contract in order to establish the existence of a common law marriage. Today, we again choose to follow this time-tested rationale.

Turning to the facts of this case, there exists no question of the existence of the contract of marriage in praesenti as found by the trial court. As to the element of cohabitation, there was more than ample evidence to show that the parties had cohabited openly and as a married couple. This evidence was by way of Eleanor's testimony that she slept with Hobart in the downstairs bedroom at all times after moving into the residence, and their registration and sleeping arrangements in hotels and motels on their various trips. In addition, there was testimony that upon visiting the home of Eleanor and Hobart, a member of the family had slept in the upstairs bedroom while her host and hostess slept together in the downstairs double bed. It is our view that appellees have produced very little evidence to contradict the existence of the requisite element of cohabitation.

The final elements, and unquestionably the most difficult herein, are those concerning the holding out of the parties' marital status in their community, and the corresponding knowledge of such status within the community and those in contact with the parties. Initially, we relate back to the evidence that the parties notified Eleanor's daughter of the agreement, that during the same week the parties visited a number of Hobart's married friends and announced the marriage, and that Eleanor had been introduced to other friends of Hobart in public or social gatherings as being married to Hobart.

There was also evidence that Eleanor agreed that knowledge of the marriage would be withheld from Hobart's mother, and that Eleanor accommodated this request by keeping her records in her former married name. The mere fact that Eleanor maintained her former married name for her own business purposes does...

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