BROWN v. BROWN

Citation Codes

Equivalent Citations

citation codes

Docket Number

29753.

Attorney(S)

Elliott Turner, David J. Turner, for appellant. George C. Kennedy, Jr., for appellee.

Judges

HILL, Justice.

See more information ...

Smart Summary

Factual and Procedural Background

From 1962 until April 1973 Kate Kenworthy Brown (appellant) and Albert Eugene (Gene) Brown lived together as if husband and wife. Gene Brown was legally married to another woman until his divorce in March 1972; after that divorce he continued to live with appellant until April 30, 1973. They never entered into a ceremonial marriage. In July 1973 appellant filed suit for divorce and alimony alleging cruel treatment. A jury returned a verdict in favor of appellant awarding a divorce and alimony. The defendant moved for judgment notwithstanding the verdict (JNOV), contending the plaintiff had failed to prove any marriage contract between the parties. The trial court granted the motion, set aside the jury verdict, and entered judgment accordingly. The appellant appealed the granting of the JNOV. The Supreme Court of Georgia reversed, directing that the jury verdict be reinstated and judgment entered thereon.

Legal Issues Presented

Whether the evidence was sufficient to establish a common law marriage under Code § 53-101, i.e., (1) capacity to contract, (2) an actual contract, and (3) consummation according to law.
Whether, when the parties' relationship began as an illicit arrangement, the party asserting a subsequent valid marriage must show the illicit relationship ended and that a marriage contract was entered into after the disability was removed.
Whether proof of a common law marriage contract between living parties must be by direct testimony of the parties only, or whether circumstantial evidence and witnesses' testimony may be considered by the jury.

Arguments of the Parties

Appellant's Arguments

The parties lived together and conducted themselves as man and wife (cohabitation, shared household activities, vacations, business trips), satisfying consummation.
After defendant's divorce, the defendant told the plaintiff they did not need a ceremonial marriage and that they were already married; plaintiff also testified she felt and considered herself married.
Witnesses who knew the couple testified they heard the couple discuss marriage after the divorce and that defendant had said they were as much married as if they had a license.
Defendant's life insurance policy named Kate Kenworthy as beneficiary and designated her as his wife (policy taken out in 1971 but remained in effect until after April 1973).
There was both direct testimony (plaintiff's) and circumstantial evidence from which a jury could find an actual marriage contract.

Appellee's Arguments

The plaintiff failed to prove any marriage contract between the parties, which is an essential element for divorce and alimony.
Because the relationship began while defendant was married to a third person (an illicit arrangement), the burden was on the plaintiff to show the illicit relationship ended and that a marriage agreement was made after defendant's divorce.
Only direct testimony by the parties can prove the existence of a common law marriage contract in an action between the parties; circumstantial evidence of the contract is, he contended, admissible only in inheritance or cases involving deceased parties.
Defendant denied making statements attributed to him and pointed to conflicting evidence (e.g., plaintiff using the name Kate Kenworthy) to argue the verdict should be set aside.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Askew v. Dupree, 30 Ga. 173	Recognition that common law marriages have been recognized in Georgia since at least 1860.	Supports the proposition that common law marriages remain valid absent positive legislative enactment to the contrary.
Allen v. State, 60 Ga. App. 248, 3 S.E.2d 780	Consistent authority recognizing common law marriage in Georgia.	Reinforces that common law marriages are recognized under Georgia law.
Long v. Long, 191 Ga. 606, 13 S.E.2d 349	Authority on sufficiency of evidence as to consummation (cohabitation) for common law marriage.	Cited to support sufficiency of the parties' cohabitation evidence on the consummation element.
Morgan v. Morgan, 148 Ga. 625, 97 S.E. 675	Establishes that the existence of a valid marriage is essential to the granting of a divorce and the recovery of alimony.	Used to emphasize that proving a valid marriage is necessary to obtain the relief sought by plaintiff.
Drawdy v. Hesters, 130 Ga. 161, 60 S.E. 451 (quoting Clark v. Cassidy, 62 Ga. 410)	When relationship began illicitly, burden is on the party asserting validity to show illicit relationship ended and that a contract was made; lists circumstances (living together, holding out, repute) that may establish common law marriage.	Applied to require plaintiff to prove the illicit arrangement ended and that evidence such as holding out and reputation may prove the contract; evidence of that nature was considered by the court.
Foster v. Foster, 178 Ga. 791, 174 S.E. 532	Where illicit relationship preceded capacity and no evidence was presented after disability was removed, plaintiff failed to meet burden to prove marriage contract.	Distinguished from the present case; cited to show that absence of proof after disability precludes finding of marriage, but here there was evidence after defendant's divorce.
Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608	An agreement to marry in the future is insufficient; there must be present intent to marry (actual contract) for common law marriage under Code § 53-101.	Cited to reject the sufficiency of an agreement to marry in the future and to support requirement of present contract.
Boulden v. Southerland, 127 Ga. App. 71, 192 S.E.2d 718	Desire for a ceremonial marriage does not preclude existence of a common law marriage.	Applied to the plaintiff's testimony that she desired a ceremonial marriage without defeating her claim of an existing common law marriage.
Oliver v. Chance, 56 Ga. App. 40, 191 S.E. 871	Conflicting evidence and denials by a defendant do not, by themselves, warrant setting aside a jury verdict when evidence exists to support the verdict.	Used to reject the contention that defendant's denial or conflicting evidence required granting of JNOV.

Court's Reasoning and Analysis

The Court analyzed the case under Code § 53-101, which sets out three essential elements for marriage in Georgia: (1) capacity to contract, (2) an actual contract, and (3) consummation according to law. The Court addressed each element as follows:

Capacity to contract: The defendant was married to a third person until March 1972 and thus lacked capacity to contract another marriage before that date. After the divorce in March 1972, both parties were capable of contracting, and the plaintiff did not contend the contract occurred prior to that date.
Consummation: The evidence of cohabitation (living together, sleeping together, eating together, vacations, business trips) was deemed sufficient to satisfy the consummation element. The Court cited Long v. Long for the sufficiency of such cohabitation evidence.
Actual contract (the primary dispute): Because the relationship began when defendant lacked capacity (an illicit arrangement), the burden was on plaintiff to prove the illicit relationship ended and that a marriage contract was entered into after the disability was removed. The Court explained that proof may include direct testimony and circumstances such as living together as man and wife, holding themselves out to the world, and local repute, citing Drawdy v. Hesters and Clark v. Cassidy.

Applying these principles, the Court found that plaintiff met her burden: she testified that after defendant's divorce he told her they did not need a piece of paper and that they were already married; she testified she felt and considered herself married; witnesses corroborated statements that defendant had expressed they were as much married as if they had a license; and defendant's life insurance policy named plaintiff as his wife. The Court rejected the defendant's argument that only direct testimony of the parties is admissible to prove the contract, explaining that where one party testifies to a contract and the other denies it, circumstantial evidence is often necessary to aid the jury. Because there was direct testimony by the plaintiff plus corroborating circumstantial evidence, the court concluded the evidence was sufficient for the jury to find a marriage contract.

Holding and Implications

Judgment reversed; the jury's verdict is reinstated and judgment is to be entered thereon.

Implications: The direct effect is that the trial court's grant of judgment notwithstanding the verdict is set aside and the jury's verdict awarding appellant a divorce and alimony is to be reinstated and entered as judgment. The opinion applies established Georgia law on common law marriage and evidentiary burdens; it does not purport to announce a new legal principle beyond the application of those authorities to the facts of this case.

Show full summary ...

BROWN v. BROWN.

HILL, Justice.

Kate Kenworthy Brown appeals from the granting of Albert Eugene Brown's motion for judgment notwithstanding the verdict which set aside the jury verdict awarding her a divorce and alimony.

This case involves an alleged common law marriage between the parties. From 1962 until April of 1973, the two lived together as if husband and wife. However, until March, 1972, Gene Brown, the defendant, was legally married to another woman. After his divorce from that woman in March, 1972, he continued to live with the plaintiff until April 30, 1973. During this time they never entered into a ceremonial marriage. In July, 1973, appellant filed suit for divorce and alimony based on alleged cruel treatment. The jury returned a verdict in favor of appellant.

The defendant moved for judgment notwithstanding the verdict on the ground that the plaintiff failed to prove any marriage contract between the parties. The trial court granted the motion because in its opinion the evidence failed to show that a marriage was contracted between the parties and therefore there could be no divorce.

Code § 53-101 enumerates the essential elements of a marriage in this state: (1) The parties must be able to contract, (2) there must be an actual contract, and (3) there must be consummation according to law. In the absence of positive legislative enactment declaring unlicensed, nonceremonial marriages to be void, common law marriages have been recognized in Georgia since at least 1860. Askew v. Dupree, 30 Ga. 173; Allen v. State, 60 Ga. App. 248 ( 3 S.E.2d 780). The three requirements of Code § 53-101 must be met, all at one period in time, in order for there to be a common law marriage.

Concerning the first element, between 1962 and March, 1972, Gene Brown was married to another woman which prevented him from having the capacity to enter into another marriage contract. After his divorce in March, 1972, he was free to contract a marriage with the plaintiff. There is no dispute between the parties concerning their ability to contract after March, 1972, and plaintiff is not contending that the contract occurred before March, 1972.

Similarly there was more than sufficient evidence on the third element, consummation of the marriage; i.e., cohabitation as man and wife. The parties themselves both testified that they lived together, slept together, ate together, took vacations together and went on business trips together while the defendant was married to his first wife, and that they continued to do so after March, 1972, when both parties had the capacity to contract to marry. The evidence was sufficient as to consummation (see Long v. Long, 191 Ga. 606, 607 ( 13 S.E.2d 349)), and its sufficiency is not seriously disputed here. Defendant's main contention is that there was no actual contract of marriage.

Even though the parties were capable of contracting a marriage and they did, in law, consummate that marriage, the second element as set out in Code § 53-101 is still necessary in order to find that a marriage existed between the parties. It is this element that is primarily in issue in this case since the existence of a valid marriage is essential to the granting of a divorce and the recovery of alimony. Morgan v. Morgan, 148 Ga. 625 ( 97 S.E. 675).

When the relationship between the parties begins as an illicit arrangement, the burden is on the party asserting the validity of the marriage to show that the illicit relationship ended and that the parties did actually enter a marriage contract. Drawdy v. Hesters, 130 Ga. 161 (4) ( 60 S.E. 451). In the case of a common law marriage, "This may be done by ... such circumstances as the act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the factum of marriage. The evidence in each case is for the jury". Drawdy v. Hesters, supra, 130 Ga. 163, quoting from Clark v. Cassidy, 62 Ga. 410.

In Foster v. Foster, 178 Ga. 791 ( 174 S.E. 532), the relationship between the parties began as an illicit relationship similar to the case here. However, in that case no evidence was presented by the party having the burden of proof that a marriage agreement was entered into after the disability had been removed.

In addition, the evidence presented must show a present intent to marry; an agreement to marry in the future is not sufficient. In Peacock v. Peacock, 196 Ga. 441 ( 26 S.E.2d 608), the plaintiff testified to their agreement to marry at a future date, but she did not show a present marriage contract as is required by Code § 53-101.

In the case before us the burden of establishing the existence of the marriage was on the plaintiff since she was seeking a divorce and alimony based on the validity of that marriage. We hold that she satisfied that burden so that the jury could find the existence of a marriage. In her testimony she told of a conversation between herself and the defendant that took place after his divorce in which she mentioned that she would like to have a ceremonial marriage. He replied that was not necessary, that they didn't need a piece of paper, that they were already married. She also testified that she felt married and considered herself married. Her desire for a ceremonial marriage did not preclude the existence of a common law marriage. Boulden v. Southerland, 127 Ga. App. 71 ( 192 S.E.2d 718).

Witnesses who had known the parties for several years testified that they had heard the couple discuss marriage subsequent to defendant's divorce and that he had said they were just as much married as if they had a license, that a piece of paper didn't mean anything.

Defendant denied saying that he and the plaintiff were married and that they didn't need a piece of paper. However, his life insurance policy was introduced which named Kate Kenworthy as beneficiary designating her as his wife. Although the policy was taken out in 1971, it remained in effect until after April, 1973.

There was much other testimony by the parties and people who had known them as a couple from which the jury could find the existence of a marriage contract between the parties. The fact that the defendant denied such a marriage or that the plaintiff used the name Kate Kenworthy or other conflicting evidence is not sufficient to sustain the judgment notwithstanding the verdict. Oliver v. Chance, 56 Ga. App. 40 ( 191 S.E. 871).

Finally the defendant contends that only direct testimony by the parties can be used as proof of a common law marriage contract in an action between the parties. He argues that circumstantial evidence as to the actual contract is admissible only in a case where the parties are deceased and matters of inheritance are involved.

Certainly proof of an actual marriage contract between the parties must be established by evidence just as is the case with any other contract. Direct testimony by the parties involved might be the best evidence of the contract, but we are unable to say that only their testimony is pertinent. Where existence of a common law marriage is in dispute between the parties, there will often be one party testifying to the contract and one party testifying that such a contract does not exist. In such situations circumstantial evidence is necessary to aid the jury in determining which party to believe. We would agree that in the absence of direct testimony to a marriage by either party in a case in which they were available to testify, it would be difficult for the jury to find they had an actual contract. Foster v. Foster, 178 Ga. 791, supra. Here there was direct testimony as well as circumstantial evidence of a marriage contract. Even if we were to agree with the defendant that only direct evidence is admissible to prove the existence of the contract, there was the testimony of the plaintiff from which the jury could find for her. She testified that she felt married and considered herself married and that the defendant had told her they were married and did not need a piece of paper.

Judgment reversed with direction that the verdict of the jury be reinstated and judgment entered thereon. All the Justices concur.