finding a common law marriage despite that fact that the wife had agreed to keep her records in her own name
How later courts described this case
- finding a common law marriage despite that fact that the wife had agreed to keep her records in her own name
- determining the elements of a common law marriage must be established by clear and convincing evidence
- sleeping together in the same bedroom after moving in together is evidence of cohabitation
Written by the judges who cited it.
The opinion
William B. Brown, J.,
dissenting. In my opinion, the majority has failed to remain mindful of the long-established rule that “[judgments supported by some competent, credible evidence going to all the essential elements of the case * * * [should] not be reversed by a reviewing court as being against the manifest weight of the evidence.” C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279 [ 8 O.O.3d 261 ]. Accordingly, I dissent.
The requirements necessary to establish a common law marriage must be unquestionably fulfilled. The state of Ohio has promulgated a statutory means of establishing a marital relationship, such being the favored method. As was stated in In re Redman (1939), 135 Ohio St. 554, 558 [ 29 O.O. 143 ]:
“So-called common-law marriage contravenes public policy and should not be accorded any favor; indeed, it is quite generally condemned. It is well-settled in Ohio that to establish a common-law marriage, all the essential elements of such a relationship must be shown by clear and convincing evidence.”
As appellant concedes in her reply brief, there is a wide difference between the parties as to what actual facts existed at the time of the alleged marriage and thereafter. Specifically, conflicting evidence was presented to the trial court on whether these parties held themselves out as being married. The trial court made a specific finding that there had been no holding out, buttressed by the documents and testimony developed in the record:
“A number of documents prepared by or caused to be prepared by Hobart or Eleanor were introduced that listed Eleanor[’s] or Hobart[’s] marital status as unmarried. None was introduced showing the pair to be married. Considerable evidence was introduced that Eleanor and Hobart held themselves out to the family of Hobart Nestor, Sr., and others as ‘friends.’ Eleanor did not use the name of Eleanor Nestor and asserted her reason for not using Hobart’s name or holding herself out as married was that Hobart did not want the family to know they were married.”
There being ample evidence in the record to support this finding, it cannot be disturbed. C. E. Morris Co. v. Foley Construction Co., supra. In reaching its conclusion today, the majority has simply, but impermissibly, put itself in the position of the fact-finder, reweighed the facts and rejudged the credibility of the witnesses. The majority has clearly failed to accord due deference, as it must, to the findings of the trial court.
Moreover, I call upon the legislature, in this last quarter of the Twentieth Century, to act to abolish the antiquated institution of common law marriage in Ohio. The days of the walking preacher and of the bishop on *150 horseback are long gone. As was stated in In re Estate of Maynard (1962), 117 Ohio App. 315, 324 [ 24 O.O.2d 95 ]:
“ ‘ “Is it not an amazing fact, that, in a matter which so profoundly affects the dignity and stability of a family institution, society should be slow to take enlightened action? Surely, no legislative reform is more needed than clear and positive statutes declaring such loosely contracted unions null and void.” ’ ”
Locher, J., concurs in the foregoing dissenting opinion.