Walton v. Walton

• Decision Date: 20 January 1982
• Citation: 409 So.2d 858
• Parties: Robert A. WALTON, Jr. v. Teresa R. WALTON. Civ. 2941.
• Court: Alabama Court of Civil Appeals

Page 858

409 So.2d 858

Robert A. WALTON, Jr. v. Teresa R. WALTON.

Civ. 2941.

Court of Civil Appeals of Alabama.

Jan. 20, 1982.

Martha Campbell Watson and David Cromwell Johnson, Birmingham, for appellant.

Stephen R. Arnold of Durward & Arnold, Birmingham, for appellee.

BRADLEY, Judge.

This is a divorce case.

Robert A. Walton, Jr., appellant, and Teresa R. Walton, appellee, were married by legal ceremony on May 11, 1977. One child, a daughter, was born of the marriage. The parties were subsequently divorced by final decree on October 19, 1979. The divorce decree provided that appellee would retain custody of the child, with visitation privileges given to appellant; that appellant was to provide medical and life insurance for the child, and pay $200.00 per month as child support; and that appellant would receive the entire interest in the parties' home in Ensley, which they both purchased during the marriage. Appellant was required to pay appellee the sum of $1,500.00 for her interest in the house, and the parties' other property was divided between them. Appellee thereafter continued to use her married surname.

Prior to the October 19 decree, appellee had moved out of the parties' Ensley home and rented a house in Gardendale. Around October 22, 1979, after the divorce had become final, appellant brought appellee her copy of the divorce decree. Both parties agree that they had a conversation regarding living together again, although the evidence as to the contents of the conversation is in dispute. At that time appellee moved back into the Ensley house with appellant. The provisions of the October 19 decree were apparently ignored.

Appellee's stay at the Ensley house with appellant was sporadic, with appellee sometimes leaving the house for several days and moving back in at a later date. The parties continued to live in this fashion for a period of seven months.

During the time the parties lived together, they sold their Ensley home, executing the conveyance as husband and wife. The parties subsequently attempted to purchase a farm; the contract for purchase was signed by both parties as husband and wife. When the purchase of the farm fell through, the parties bought a house in Pleasant Grove in the summer of 1980. The conveyance was signed by both appellant and appellee as husband and wife, although appellant claims he had no knowledge of that fact. The real estate agent who prepared the documents testified that she assumed the parties were husband and wife; she was not told otherwise. The evidence is unclear as to whether the proceeds of the sale of the Ensley house were used to finance the Pleasant Grove house. Appellant testified that the down payment came from his savings account; both parties assumed first and second mortgages, although appellant subsequently made all the payments.

In June 1980 appellee moved out of appellant's residence completely, and the parties began to comply with the provisions of the divorce decree. Appellant was later institutionalized for treatment of alcoholism and related emotional problems.

In December of 1980 appellant filed a bill in the circuit court to set aside the deed to the Pleasant Grove house and to reform the document to reflect appellant as sole owner. Appellee subsequently filed a pleading, alleging that the parties had entered a common-law marriage after their October 19, 1979 divorce, and requesting that the court grant the parties a divorce and effect a division of property. Appellant denied that the common-law marriage existed.

The Circuit Court of Jefferson County, hearing the evidence ore tenus, found that the marriage between the parties had been reestablished by their post-divorce conduct, and granted the parties a divorce. The provisions of the decree were similar to the provisions of the original decree, with three exceptions. The Pleasant Grove house was to be sold, the mortgages paid, and the leftover proceeds divided equally between the parties. Appellant was required to pay appellee the sum of $500.00 as alimony in gross, and to pay appellee's attorney's fee of $1,000.00. Appellant asserts that the actions of the court were erroneous, and brings this appeal.

Appellant raises three issues to be decided by this court: (1) whether the parties' post-divorce conduct clearly established the existence of a common-law marriage; (2) assuming a common-law marriage was established, whether it was error and an abuse of discretion for the court to require that the Pleasant Grove property be sold and the proceeds divided between the parties, and to require appellant to pay appellee $500.00 as alimony in gross and to pay her attorney's fee; and (3) whether it was error for the court to refuse to allow appellant to make an offer of proof concerning certain excluded evidence.

Appellant first contends that the evidence is insufficient to establish the existence of a marriage relationship. We do not agree. To constitute a common-law marriage, there must be a present agreement or a mutual understanding to enter into the marriage relationship; the parties must be capable in law of making the marriage contract; and there must follow cohabitation as husband and wife and a public recognition of that relationship. Golden v. Golden, 360 So.2d 994 (Ala.Civ.App.), cert. denied, 360 So.2d 996 (Ala.1978). No words of assent are required; present intention is inferred from cohabitation and public recognition. Skipworth v. Skipworth, 360 So.2d 975 (Ala.1978).

The marriage relationship may be shown in any way that can be known by others, such as living together as man and wife, referring to each other in the presence of others as being in that relation, declaring the relation in various types of documents and transactions, sharing household duties and expenses, and generally engaging in "... all of the numerous aspects of day-to-day mutual existence of married persons." (Citations omitted.)

Bishop v. Bishop, 57 Ala.App. 619, 330 So.2d 443 (1976).

Due to the serious nature of the marriage relationship, the courts will closely scrutinize claims of common-law marriage and require clear and convincing proof thereof. Piel v. Brown, 361 So.2d 90 (Ala.1978). The ore tenus rule applies, however; this court need determine only if there is evidence to support the trial court's findings. Huffmaster v. Huffmaster, 279 Ala. 594, 188 So.2d 552 (1966). We find that there existed ample evidence to support the finding that a marriage relationship existed. During the time that the parties lived together, they sold their home in Ensley and purchased a new home in Pleasant Grove, executing both conveyances as husband and wife. For the tax year 1979 the parties filed a joint tax return as husband and wife. The returns were prepared by the appellee's accountant from information provided by appellant, and signed by both parties. Appellee at times also used appellant's Sears charge card; the evidence is in dispute as to whether appellant gave his permission for the use. Appellee opened a Parisian account, using her married surname.

Prior to the divorce decree of October 19, 1979, the parties maintained a joint bank account. Appellant maintains that after the divorce he withdrew appellee's name from the...