Wright v. Goss, A97A1609
Decision Date | 23 October 1997 |
Docket Number | No. A97A1609,A97A1609 |
Citation | 229 Ga.App. 393,494 S.E.2d 23 |
Parties | , 97 FCDR 3921 WRIGHT v. GOSS. |
Court | Georgia Court of Appeals |
James L. Ford, Sr., Christopher G. Moorman, Atlanta, for appellant.
Barron & Barron, George L. Barron, Jr., College Park, Garlan L. Barron, for appellee.
Goss filed an application in the Probate Court of Fulton County for letters of administration on the estate of his brother, who died in 1995. Goss averred that the decedent was unmarried. Wright filed a caveat, contending she was the decedent's common law spouse and was entitled to administer his estate. She also asserted that the court was without jurisdiction, because she and decedent were residents of Clayton County at the time of his death. The court granted Goss' motion for summary judgment on both grounds of the caveat.
Goss presented various documents in which decedent had identified himself as a Fulton County resident: decedent's driver's license, voter registration card, tax returns, and applications for loans made by him and Wright on property jointly owned by them in Clayton County. In the loan applications, both the decedent and Wright represented themselves as unmarried. In other documents (income tax returns, earnings statements, an automobile insurance application, and medical records) Wright also represented herself as unmarried. Decedent's relatives, co-workers, neighbors and friends testified by affidavit that he never stated he was married and had always resided with his parents in Fulton County. Most affiants testified they saw him there on a regular basis. His mother and a neighbor testified he was there every night.
In her deposition, Wright testified that she and Goss had purchased the property in Clayton County as a residence years earlier and that he spent four nights a week there and the remainder of his time taking care of his ill parents. She further testified that Goss kept a few items of clothing at the residence and that their joint savings account statement was mailed to them there. According to Wright, she and Goss held themselves out as being married by his registering them as husband and wife at a motel they frequented, by her introducing him to neighbors as her husband, by wedding rings they bought for each other and wore, and by their representing themselves to her children as married. In two affidavits, neighbors testified they saw Goss at the parties' Clayton County residence virtually every day.
1. " ' Radford v. Reeves Constr. Co., 226 Ga.App. 214, 215, 486 S.E.2d 81 (1997).
"When the alleged marriage is unlicensed and nonceremonial, the burden is on the proponent to prove that a common law marriage existed." Baynes v. Baynes, 219 Ga.App. 848, 849(1), 467 S.E.2d 195 (1996). 1 Ga. Osteopathic Hosp. v. O'Neal, 198 Ga.App. 770, 777-778(10), 403 S.E.2d 235 (1991). Brown v. Brown, 234 Ga. 300, 302, 215 S.E.2d 671 (1975). O'Neal, supra at 778(10), 403 S.E.2d 235. Of particular import is that "such legal relationship cannot be partial or periodic," Baynes, supra, and that the three requirements must coexist. Brown v. Brown, supra at 301, 215 S.E.2d 671.
The concept of a conflict in the evidence should not be confused with the concept that parties cannot be married only periodically. Both, of course, are valid legal concepts. The latter would mean that if the factfinder finds as true that the parties sometimes held themselves out as not married when that was convenient or served their purposes and at other times held themselves out as married, then the factfinder would be compelled to conclude that the party who has the burden to prove a common law marriage existed would fail because the evidence conclusively shows that one element is disproved: that the parties agreed to live together as husband and wife. Ga. Osteopathic Hosp., supra. It would be unlawful to agree to do that only periodically. Either you agree to be married, and married you are all the time, or you do not, in which case you are not married at all. See Baynes, supra at 849(1), 467 S.E.2d 195.
In this case, there is conflict in the evidence. Some witnesses say the parties held themselves out as married, and others say they held themselves out as not married. Obviously, no one can testify as to what they did at all times. That is, the nature of the question requires limited-time evidence. That is not to say that the marriage-proponent has failed as a matter of law to prove a common law marriage.
If the factfinder believes that the evidence of non-marriage either was...
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