Walker v. Yarbrough

• Decision Date: 02 December 1974
• Docket Number: No. 74--141,74--141
• Citation: Walker v. Yarbrough, 516 S.W.2d 390, 257 Ark. 300 (Ark. 1974)
• Parties: Bonnie Black WALKER and Janet Elaine Walker, Appellants, v. Betty Walker YARBROUGH, Administratrix of the Estate of A. C. (Jack) Walker, Deceased, Appellees.
• Court: Arkansas Supreme Court

Page 390

516 S.W.2d 390

257 Ark. 300

Bonnie Black WALKER and Janet Elaine Walker, Appellants, v. Betty Walker YARBROUGH, Administratrix of the Estate of A C. (Jack) Walker, Deceased, Appellees.

No. 74--141.

Supreme Court of Arkansas.

Dec. 2, 1974.

Dan McCraw, Hot Springs, Ike Allen Laws, Jr., W. H. Schulze, Russellville, for appellants.

Williams & Gardner, Russellville, for appellees.

JONES, Justice.

A. C. (Jack) Walker died on November 12, 1969, and Betty Walker Yarbrough was appointed administratrix of his estate in compliance with her petition alleging that she was the only daughter and sole surviving heir of Mr. Walker. The appellant, as Bonnie Black Walker, filed a petition in the probate court alleging that she was the widow of Mr. Walker and that her minor child, Janet Elaine, was a daughter and heir of Mr. Walker and as such was entitled to a one-half interest in his estate after the expenses of administration, and her own dower interest were set aside. The appellant prayed that her dower interest in the property of Mr. Walker be set aside and awarded to her and that their daughter, Janet Elaine, be awarded her one-half interest in the remainder of Mr. Walker's estate. Bonnie's petition was based on an alleged common-law marriage. The probate judge found that Bonnie failed to establish a valid common-law marriage with Mr. Walker. He dismissed her petition and decreed that Betty Walker Yarbrough was the sole surviving heir of Mr. Walker and was entitled to his estate.

On appeal to this court Bonnie and Janet Elaine rely on two points for reversal: First, they contend that the chancellor erred in finding that A. C. (Jack) Walker and Bonnie Black Walker were not common-law husband and wife and, second, they contend that there was substantial evidence Janet Elaine was the daughter of A. C. (Jack) Walker and that he recognized her as such. We do not reach appellants' second point because we are of the opinion the chancellor was correct in finding that A. C. (Jack) Walker and Bonnie Black Walker were not common-law husband and wife.

Bonnie's petition, insofar as the child is concerned, is based on Ark.Stat.Ann. § 61--141(b) (Repl.1971) which reads as follows:

'If a man have a child or children by a woman, and afterward shall intermarry with her, and shall recognize such child or children to be his, such child or children shall be deemed and considered as legitimate.'

It is conceded by all parties concerned that Mr. Walker and Bonnie were never married in a civil or religious ceremonial marriage and apparently the parties recognize that before Bonnie or her child, Janet Elaine, would be entitled to share in Mr. Walker's estate, it would be necessary to prove that Mr. Walker had intermarried with Bonnie.

The evidence is to the effect that Mr. Walker was approximately 65 and Bonnie was approximately 34 years of age when they met in Hot Springs in 1958 or 1959, Mr. Walker owned farmland with a house thereon near Russellville and also maintained a house trailer at different locations in Hot Springs. Bonnie owned her home in Hot Springs and she and Mr. Walker entered into an illicit relationship and periodic illegal cohabitation in Hot Springs and on his farm near Russellville, and the relationship continued intermittently until about 1967.

The child Janet Elaine was born to Bonnie on August 28, 1963. There is considerable conflicting evidence directed to the question of whether Mr. Walker was the father of the child and to his acknowledgment that he was the father of the child as well as to his acts and intentions concerning her welfare. We find it unnecessary to discuss this evidence because this case turns on the question of whether Mr Walker and Bonnie ever married. Common-law marriages, of course, are not permitted in Arkansas and the question narrows down to whether or not a marriage was contracted between the parties outside the state of Arkansas which would be recognized in this state under Ark.Stat.Ann. § 55--110 (Repl.1971) which reads as follows:

'All marriages contracted without this State, which would be valid by the laws of the State or country in which the same were consummated, and the parties then actually resided, shall be valid in all the courts in this State.'

The evidence on this point is to the effect that in 1966 Mr. Walker took Bonnie and her daughter on a trip to California where they spend four of five days with relatives in that state and returned to Arkansas through the state of Colorado where they also spent five or six days visiting with Bonnie's relatives in that state. The evidence is also to the effect that Mr. Bob Chandler had lived with Mr. Walker in his home near Russellville and they had become quite good friends. In 1966 Mr. Chandler was in the automobile business at De Queen, Arkansas, and Mr. Walker visited with him on different occasions. Chandler testified that Mr. Walker brought Bonnie and the child to De Queen in 1966. He said he knew that Bonnie and Walker were not married and he mentioned that fact to Mr. Walker. He said Mr. Walker first told him that he and Bonnie had married in Old Mexico, but that he then inquired about the marriage laws in Oklahoma as well as other states and he directed Mr. Walker to consult an attorney in De Queen.

The evidence is to the effect that prior to making the trip to California, Mr. Walker and Bonnie Mae Hawthorn ¹ made application in Sevier County for a marriage license and license was issued on May 9, 1966. Bonnie said Mr. Walker carried the marriage license with them on their trip to California and surrendered the license unused upon their return to Arkansas.

The appellant argues that she and Mr. Walker succeeded in contracting a common-law marriage, primarily in the state of Colorado which recognizes common-law marriages, and that the marriage so contracted should be recognized in Arkansas. We are of the opinion that the evidence falls far short of proving the consummation of a marriage contract entered into in the state of Colorado or any other state.

The evidence in this case is as consistent with concerted effort and intention to avoid a marriage contract as it is in entering into and consummating one. According to Bonnie Mae's own testimony, she and Mr. Walker simply entered into an illicit relationship at Hot Springs, Arkansas, in about 1959 and continued that relationship at intervals for about ten years. She said that in 1967 she refused to go to Russellville with Walker and excerpts from her testimony are as follows:

'Q. At that time you refused to come to Russellville with him did you not?

A. I had been working on my house at Alpine. Yes, sir, I did. I told him he could just take me back to Alpine and he could go his way which was up at Russellville to Betty or to Mrs. Edna Walker and Myra. And then in uh--September of '67 I went to work. I went to work at the Ouachita Hospital which that means I was not staying up at Russellville. I was staying then in Hot Springs but Jack was still in and out with me at my house on Alpine, 116 1/2.

Maybe a week or two weeks he'd be gone. And then he would be back. But as far as living with him, I considered myself living with him even if he was in and out because that was his way of doings things.'

Bonnie said she and the child went on a trip to California and back through Colorado with Mr. Walker. She said she had been with him to El Paso, Texas, and Old Mexico. She said they first visited Walker's niece, Imajean Carney, in California. She said they occupied the same room and bed in a guesthouse at Mrs. Carney's home and told Mrs. Carney they were married. On this point Bonnie testified as follows:

'Q. Now did you represent--did you tell Mr. and Mrs. Carney that you were married?

A. Yes, sir.

Q. How were you introduced when you were in California?

A. Well, I don't really remember how Jack put it, but he was always saying I was his nurse, and his wife, and just everything. And I was. Even a painter, a plumber, I don't know what else. I've even helped him mow the grass.

Q. Did Mrs. Carney introduce you and Mr. Walker to any of her friends out there?

A. Her friends?

Q. Yes.

A. Oh, she had a neighbor, but I couldn't remember the neighbor's name that came over that lived close to her. She did but I couldn't.

Q. Do you know how she introduced you?

A. I don't remember her words, no, sir.'

Bonnie also said they spent one night in a motel in California and also visited a nudist colony.

'Q. Will you tell us, please, what was said at the nudist colony concerning your marriage?

A. Well, Jack--he asked Jack if that was his wife and he said yes. And Jack had to sign the register. He signed it Bonnie Black, Janet and Jack Walker. Maybe he said A. C. Walker. I don't know. We got the little card, Bonnie and Jack Walker, I believe. Three day visit or something like that.'

Bonnie said they also visited with Russell Cannon in California. She said they occupied the same bedroom in the Cannon home and told Cannon they were married.

'Q. Did you all stay in the same room at Russell Cannon's house?

A. Right.

Q. Did you all represent to Ressell Cannon that you were married?

A. Yes.

Q. Did Russell Cannon introduce you as man and wife?

A. I can't recall. We were at his shop almost every day but I don't know if anybody come in.

Q. And you all had Janet with you at the time?

A. Janet was with me.

Q. Then after you left Russell Cannon's house, where did you go?

A. Oh, we went to uh--my aunt's, Cheyenne Wells. We stopped somewhere overnight. I don't just remember, in Arizona I believe. But I don't know where it was, but we did stop, make one stop between California and my aunt's. And my aunt was in the hospital and we went to my cousin's in Arapaho, Colorado, and she lives sort of out in the country, and she had a place in town which town is a little wide spot in the road. And Jack and I and Janet stayed at her house in town. And they were out on the farm.

Q. This is Mrs. Irwin, is...