Petition for Writ of Certiorari — Vaughn v. Hufnagel

IN —

SUPREME COURT wr THE. UNITED STATES

October Term, “1972.

‘No

ELBA W. VAUGHN, Widow of Decedent, . or

Clarence W. Vaughn - =- - ,- + Petitioner

* versus

WILLIAM JOHN HUFNAGEL, Executor |

of the Estate of Clarence W. Vaughn, =~ ‘*

: WILLIAM JOHN HUFNAGEL and FLOR-

ENCE F. HUFNAGEL, His Wife. |

DAISY. P. BURDON, . . a .

~

i.

.

PETITION FOR A WRIT OF CERTIORARI TO THE

~ © COURT OF APPEALS OF KENTUCKY

JULIAN H. SINGMAN

1916 Sunderland Place. N.W.

Washington, D..¢. 20036

WILLIAM B. COHEN

1426 Kentucky Home Life Bldg.

Louisville, Kentucky 40202

— —

¢ °

WESTERFIELD-BONTE CO., INC., 619 W: KENTUCKY, LOUISVILLE, KY.

*

-_

CHESTER E.VAUGHN - - -. . Respondents.

eet 5

INDEX —

= | na eae PAGE

Opinion _— Him Daweh RENE OS A RENE kd Mh eRe ks 2

Jurisdiction . Pavel Die eee .

Question Presented . Jetgnepeee CeeaN nese as hee 2.

The Constitutional Provisions. dieu Caan ‘eulaeas 3/

‘ Statement of the Case.......... phe cadabie saawaewnls 345

‘State of Proceedings in Which Federal Questions

Were Raised . iMaNeReS Stee ce gece eee ere ee F

: ‘ <'- ;

Reasons Relied on for the Allowance of the writ. (cae ame

Decicliniten . Lah hhe tian bate ebb ane ne ee ouak aes 7

Appendix (Opinion and Sebi of the Court of Ap-

peals of Kentucky and. Mandate) seesedeeseseses Pl

Deposition taken on written Interr ogatoribs proving:

Mee WIN oss 12-15

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CITATIONS

Cases: | : PAGE »

- Meister v. Moore, 96 U. S, 76, 24 L. Ea? See d- 6

Maryland use of Markley v. Baldwia, 112 U. S. 490, -

"> -5 &. Ct. 278, 28 Li. Ed 822....... i es ee oka 6

Jewell.y. Jew ell, 1 How. 219, 11L. ‘Ed-108 ease c we : 6

Travers v. Reinhardt, 205 U. S.- 423, 27 S. “Ct. 963,

ich inca nkeensenecoausscces Oe

a Hill, 125 U. S. 190, 8S. Ct. 723, 31 L. Ed.

DSR INE Nip sen ia eign ae aa, «6

'. Graham v. _ Richardson, 403 U.S. 365, 29 L. Ed. 534, :

eS RS eke nao bd a edReus dee neues end or

Richard Perry Loving, et ux: v. Virigina, 388 U.S.1, _

18 L. Ed. 2d.12, 1010-87 S. Ct. 1817........... 6

Kennedy v..Damron, Ky., 268 S. W. 2d 22, 24 (1954) 10

~ Unbenhower v: Labus, 85, Ohio St. 238, ot N. E. 832 10

Miscellaneous:

28 U.S.C. Section 1257(3).......... 0. ce peeeee. ae

Kentucky Revised Statute BOIS as snr tenes ns ‘ 5

Article 4, Section 1.of the United States Constitu-

ae a a Oe ee ae

Fourteenth Amendment to the Feder al Constitution <3

Me:

im =

SUPREME COURT OF THE UNIT STATES ay

October Term, 1972 : aes | ;

ee — |

ELBA’ ow. VavuGHN, Widow of peccteuk: | " §

Clarence W. Vaughn .- - - Petitioner -

Uv.

WauiiaM JOHN Hurnace, Executor of the

Estate of Clarence W. Vaughn, 7

— WILEIAM J OHN HvFNAGEL and FLORENCE |

F. HurnaGeE., His Wife,

Dagsy P. Burpon, Parone NS Pelee hg oe neat

CHESTER E. VAUGHN - -- |- . li ct

‘SETITION F FOR A WRIT OF. CERTIORARI TO THE

NR tcisial OF APPEALS OF KENTUCKY

To the Honorable, thé Chief Justice and: the Asso-, _

"ciate Justice of the Supreme Court of the United

States of Ameri ica: |

‘The petitions .of Elba W. Vaughn, Ww idow of the" |

Decedent, Clarence W. Vaughn, for a writ of certior ari

to review a judgment of the Court of Appeals of Ken-

| tucky made and entered by said court on, the 21st day.

of May, 1971, a- timely petition for rehearing was de-

‘nied on the 17th day of December, 1971, copy of which .

is hereto appended, respectfully shows to this honor- oe

able court: 3

,

OPIN ion BELOW

, No opinion was reridered by the tr ial court.

_ The opinion: of the Court of Appeals of Ken = |

(Kentucky’ S highest court) copy of which is appended *

hereto has been reported in the South Western Re-

-porter, Kentucky second séries Vol. 473, pages. 124 to

127, which affirmed the holding of the Circuit Court of _ ;

Jefferson County, Kentucky, that ‘there was: no valid ie:

mariage and that the judgment. denying petitioner ..

letters of administration; is correct and-therefore af-

firmed, because the perf were tyansients in Ohio.

when and where they were marri d. : ; |

FORISDICTION

The judgment of. the Kentucky Court of a é

was entered. on the 21st day of May, 1971, petition for

rehearing denied on the 17th day of December, 1971.

- No order was granted. for rehearing or for exten-

sion of time in which to petition for certiorari.

The statutory provision believed: to confer on this SS

: court jurisdiction to review the. judgment of the court

below i is 28 U. Ss. C. Section 1257 (3).

- QUESTION PRESENTED

_ May the Court of Kentucky deny the: legality and

cutébolica of a. common law marriage made in Ohio, .

where the common law marriage was valid; Xolely on °

the. gr oan that the parties were “transien ts’?

ge ee

THE CONSTITUTIONAL PROVISIONS

-. judicial! proceedings of every o ‘a

‘law marriage made in Ohio on t

2. The Fourteenth Amendment to the i @leral Con: 2

‘stitution provides for equal protection to all persons:

The denial hy the. Kentucky gaage a valid common

he. sole ground that

} the parties were tr ansients at the time ofthe marriage

is in viokation/ot | this oe,

:

STATEMENT ( OF THE CASE

After: prelimiary courtship in Kentucky: ‘he: Peti-

. tioner, Elba W. Vaughn, ‘departed: for Cincinnati,

_ Elba, when she left Louisville wore her engagement

| ring and when she returned. from. Cincinnati, in ad- -

dition to-her engagement ring she aso! ‘wore her wed- il

ding ting.” The. couple arrived by automobile in Cin-.

' . ¢innati on July: 16, 1966 and registered. at the Cliff ,

View Motel in Cincinnati as Mr. and Mrs. Clar ence W.

- Vaughn, 2319 Winston! Avenue, Louisville, Kentueky ?

(the home of the groom). | Vos,

On July 16, 1966, at the Cliff View Motet: she and _

Ohio, where. common law. marriages are valid, in the’ «

company of her fiance, Clarence W. Vaughn, on July

16, 1966, with the jointly avowed intention of getting .

married. The couple took. along their wedding outfits.

the — -edent then and there agreed to become hushand

.

— Fs

1. _ Article 4, Section 1 of the Constitution of the |

. "United States provides: ‘Full, faith and credit shall

. be given in eagh state to the public acts, records, and

et TT Der -

: +

“and wife ; they exchanged - ee vows and the de--

. eedent presented Elba with a Wedding ring to-seal and

complete the marriage contract and thereupon ¢ohab- 3

* ited as husband and wife... On July 17, 1966, the peti-

tioner and the decedent, Clarence W. Vaughn, left Cin-

-

cimnati, returned to Louisvillé and lived together at

2319 Winston Avenue, holding themselves out to their

lawyer, friends, chureh, associates and neighbors, as -

husband and wife and were so reeognized by these per-

sons until the time of the death of Clarence W. V ee

on February 7, 1967. ‘

_As Clarence V aughn’s wife, Elba bought their gro- ~

ceries with her money, paid the balance due on .

Clarence’s new car and gursed Daisy P. Burdon, Clar-

ence’s aunt, who was at all times during the marriage

disabled by illness from taking care ofterself. In

addition, Elba Vaughn worked at St. Anthony's Hos-

pital to provide an income for herself and Clarence

_ Vaughn, whe had not worked for years because 6f his

~ physical inabilities, and he never held a job, other than —

sporadically, as a grocery delivery boy, temporary mail

_carrier, during Christmas rush periods, and a delivery

bey fora printing firm. Elba and Clarence sent Christ-

mas cards as man and wife and likewise contributed to

the Cathelie Church as Mr. and Mrs. Clarence W.

Vaughn. The proof is also uncontradicted that Clar-

‘ence Vaughn, who had beeti a Baptist all of his life

and owned Bethany Baptist Church bonds of the face

value of $6,000.00 at his death, quit attendimg that

church after his marriage to Elba Vaughn and at-

’

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tended the Catholic Chureh noey with her, ae be-

-ing a Catholic.

When Clarence became ill, Elba nursed him day and__

night until he died on February 7, 1967. Elba made all

firagral arrangements. _

If petitioner was the wife of Clarence W. V aughn

at his death, his Will made before marriage was re-

_ voked atid Clarence W. Vaughn died intestate making

Elba W. Vaughn his sole heir under Kentucky Re-

vised Statute 394.090. The Jefferson County Court

held that a common law marriage had been proved in

Ohio but denied the petitioner's application for letters: ;

Of,administration and allowed the decedent's Will to |’

be probated, because the parties were not legally mar-

ried on the sole gragmd that the decedent, Clarence W..

Vaughn, and Elba Vaughn were transients in Ohio at

the titue of the marriage. (Appendix, pp. 12-13.)

. STATE OF PROCEEDINGS IN WHICH FEDERAL

QUESTIONS WERE RAISED |

' The full Faith and Credit Clause and the Equal -

Protection Clause were argued and raised in the Jeffer-

son County Court, Jefferson Circuit Court and Ken-

tucky Court of Appeals.

REASONS *.ELIED ON FOR THE ALLOWANCE .

OF THE WRIT | |

This Cou.i as held in the following cases that in

the absence of any positive statute to the contrary, any

marriage regularly made according to the common law

is a valid marriage: Meister v. Moore, 96 U. S. 76,

24 Ed. 826, Mary land use of Markley v. Baldwin, 112 ©

U.S. 490, 5 S. Ct; 278, 28 L. Ed. 822, Jewell v. Jewell,

1 How. 219, 11 L. Ed. 108,'and Travers v. Reinhardt,

205 U.S. 423, 27 S. Ct. 563, 51 L. Ed. 865.

Mr. Justice- Field in Maynard v. Hill, 125 U. S. 190,

8S. Ct. 723, 31 L. Ed. 654 indicated in his opinion the

wreat importance of marriage relationship when he

said: *. .. the most important as affecting the hap-

piness of individuals, the first step from barbarisin to

incipent eivilization, the purest tie of social life and

the true basis of human progress.’* fo deny the right

of marriage in Ohio, because the parties were tran-

sients violates Article 4, Section 1 and the Fourteenth

Amendment of our Constitution. This same question ~

was invoked as to welfate payments to resident aliens

in Graham v. Richardson, 403 U. S. 365; 29 L. Ed. 2d

534, 91 S. Ct. 1848. Residence or dgmicile are not

essential in the welfare case nor for 4 valid common |

law marriage. . Their importance pertpins to proof of

the common law marriage, but is not important when

the marriage is made al verba de presenti, as was in

this ease. |

‘The Court in Richard Perry ‘en et ux. v. Vir-

ginia, 388 U.S. 1, 18 L. Ed. 2d 12, 1010, 87 8. Ct. 1817 ©

states: ‘‘Marriage is one of the ‘basic civil rights of

man; fundamental to our very existence and survival.”

The Court further said: ‘The freedom to marry has

_ long been recognized as one of the vital personal rights

— to the orderly pursuit of happiness by free

a

man.’

SER OEE RR VOIR 1 Sci CLEAR i

‘28 te

. Serious constitutional questions are involved, Ar-

ticle 4, Section 1 of the Constitution of the United

States provides: ‘‘ Full faith and credit shall be given

- in each state to the publie acts, records, and | judic ‘jal

proceedings to every other state.”

The Fourteenth Amendment to the Federal Con-

stitution provides for equal firotection to all persons.

To deny a transient the right to be married at common

law in Ohio is in violation of this right. |

With the advent of the airplane, the automobile and

the trailer, the United States is a country whose citizens

move freely and often, from one state to -dnother.

Since this question involves a Targe portion of ovr

population, the question in this case should be re-

solved by this Court.

CONCLUSION -

The petition. for a writ of certiorari should be

granted. : |

Respectfully submitted,

Juuian H. Stveman-

ee we me ang oy Place, N.W.

seer D. C. 20036

Wuazrix B. CoHEN

1426 Kentucky Home Life Bldg. |

Louisville, Kentucky 40202

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APPENDIX :

OPINION OF THE COURT BY JUDGE EDWARD |

P. HILL, JR.—AFFIRMING —-. pee a

“This isan n appeal from an order granting appellees sum-

__» mary—judgment:on the trial ‘of appellant’s appeal to the

Jefferson Cireuit Court from the order of the Jefferson

County Court probating a will of Clarence W. Vaughn and

refusing to appoint the appellant administratrix of the

estate of Clarence W.. Vaughn. -

The will of Clarence. W. Vaughn, regular: on its face, ’

was dated January 23, 1963. It left the estate of deceased :

to a friend,and neighbor who was no relation to him.

On July 16, 1966, appellant and the deceased journeyed

to the state of Ohio, where common-law marriages are .

recognized, and registered at a motel as Mr. and Mrs.

Clarence W, Vaughn. They were at that time residents of

- Kentucky. aed e

Appellant says they exchanged puiteal vows in marriage

without witnesses or solemnization. Qn the followi ing day, .

they returned to Kentucky with the appellant regaled in |

the customary diamond ring and wedding band. Until the

death of Clarence, they lived and held Chomselve es out as @—

man and wife.

The chancellor considered only the Sea and an-

_ swers to. interrogatories addressed to appellant and her

attorney. But they established beyond a question that the

. parties to the so-called attempted marr lage in question here

were “visitors in Ohio” during the less than 24- hour period

of their stay in that-state.

We could spend considerable time and space in a pro-

longed discussion of common-law marriage and. related

questions which may be interesting and beneficial. to stu-

dents of the law, but preferirng to leave those questions to > 1

the text writers and others, we simply say that this state

—-t~

ary lines of this state, but may recognize one legalized ‘by

ee & a ‘ - oh . m rss ; :

a ne -does not recognize common-law marriage within the bound- _

another state. But it takes more than riding acress the

Ohio River to make one legal. |

In Kennedy v. Damron, Ky., 268 S. W. 2d 22, 24 (1954),

this court wrote these lines which fit the facts and provide:

the legal answer to the instant case:

“Upon the evidence in the ease before us, the ©

chancellor was justified in coneluding that Mr. Damron

and Kula Mae were merely visitors in’ Ohio, with no

abode by which they established themselves as mem-

bers of the community, It is truie they occupied a

dwelling for a time, but only. in the character of tran-

sients, and their holding themselves ont as man and

wife in Ohio, was principally as to, tradesmen with

‘ whom they had casual dealings. They did not heeome 3

an established part of the community.”

In Umbenhower v. Labus, 85 Ohio St. 238, 97 N. E. 832,

the Ohio Court thus defined a common-law marriage:

“Tn agreenient of marriage in praesenti, when made

by parties competent to contract, accompanied and

followed by cohabitation as husband and wife, they

being so treated and ‘reputed in the community and

circle in which they move, establishes a A valid marriage

at common law. ”

Tt.is. ‘concluded that the claim of common-law marriage -

fails. It follows that the judgment denying appellant let-

ters of ‘administration is correct and i is affirmed,

All concur.

. Attorngy for Appellant:

WILLIAM B. COHEN | ‘ue fo

1416 Kentucky. Home Life Building ‘ 4

Louisville, Kentucky :

Attorney for Appellee: -

LAWRENCE S. GRAUMAN - :

425 West Liberty Street : e

Louisville, Kentucky 40202

~-

——— og

4

» PETITION FOR REHEARING OVERRULED

DECEMBER 17, 1971

_. MANDATE

THE COMMONWEALTH OF KENTUCKY,

The Court of Appeals -

' Spring Term—May 21, 1971

“Elba W. Vitughn, Widow, cte. *

v. 7 | ae

_ William John Hufnagel, Executor, of the Estate of Clarence

W. Vaughr, et al

- Appeal from a judgment of the’ Conimon Pleas Branch,

5th Division, Jefferson Circuit. Court

The Court being sufficiently. advised, it § seems there is no

error in the judgment herein:

It is therefore considered that said. ‘judgment be af-—

firmed; which is ordered to be certified to said court..

jit is further egnsidered that the appellees recover of the

appellant ‘their.cost herein éxpended. _., :

"A copy—Attest: ~* rs petty am

o DICK VERMILLION, C. C.. A.

>. By John C. Scott, D. C.-

“Fssued December 17,1971 -

OFFICIAL CERTIFICATE

I, Panlie Miller, Clerk of Jefferson Cirenig Court, in

and for the Commonwealth and County aforesaid, do here-

by certify that the attached is a full, true and correct copy

of Deposition Taken on Written Interrogatories, filed, Sep-

tember 5, 1967; and noted on Civil Docket in action #108480,

wherein, Elba W. Vaughn, Appellant v. Wijliam J. Hnf-

nagel, et al, Appellees, ax appears of record. in inv offiee.

In Testimony Whereof, I have hereunto set my. hand

and affixed the seal of the Court aforesaid, at the city of

Louisville, this 25th day of January 1972.

- |». (s) Paulie Miller, Clerk

ols coe caenck nea tine ROI TaE gee .

_ No. 108480 ai

Jefferson Cireuit Court, Common Pleas Branch

‘Fifth Division. .

‘

Elba W. Vaughn it Stak oe, ee Appellant.

. 7 |

William ‘; Hufnagel,etal. - - + = | Appellees

DEPOSITION TAKEN ‘ON WRITTEN

| INTERROGATORIES

The deposition of Edwin H. Stierle, 1609 Kentucky

Home Life Building, Louisville, Kentucky, 40202, taken on

written interrogatories . propounded by the attorneys for

the plaintiff pursuant to notice. Said deposition was taken

in the office of Billie Richards, 1609 Kentucky Home Life

‘Building, houisv ille, Kentucky, 40202,°on August 22, 1967,

to be used in accordance w vith the Kentucky Rules of Civil

Procedure. : .

Edwin H. Stierle, being first duly sworn, stated as fol- :

lows in answer to said interrogatories:

1. Yes, I presided as Special Judge of the Jefferson

County Court in the probate proceedings in the estate of

Clarence W. Vaughn, deceased, No. 112590.

2. Yes, Elba Woods Vaughn testified at the probate

. proceedings’ that she and Clarence Vaughn exchanged mar- _

riage vows in the Cliff View Motel in Cincinnati, Ohio, on —

July 16,.1966. Whether or not the marriage was ‘consum-

mated at that time is a question of law.

3. Yes,. Judge Grauman, counsel for the Hufnayels,

questioned Elba Woods Vaughn regarding a oe

-

13

common law marriage. Testimony tending to prove ‘the

marriage was given on direct examination. Judge Grau-

man’s questions | were asked on cross- examination of the

witness. apa. 3

4. Yes, Judge Grauman, prior to examining the wit--

ness in veined to the sq called common law marriage, stated

that he asked. the questions without waiving his objections |

that the evidence - was inadmissible under the dead man’s

statute.

cosine’

(s) Réwin E H. Stierle

* * F

State of. Kentucky] Ss

County of Jefferson ‘‘Birea - os

I, Billie Richards, a Notary. Public within and for the

“ihe and county aforesaid, do hereby cer tify that the fore-

going deposition of Edwin H. Stierle was taken before me

on August 22, 1967, in my office; that the witness was first

duly sworn to’tell the truth, the whole truth and nothing

-but the truth; that the. deposition Was-reduced to writing

and was signed and sworn to by the witness; that the fore-

going is a full, true and correct transcript of said. depo- -

sition. |

“Witness my signature. this 22nd day of August, 1967.

or; ae Commission expires: August 5, 1969. Sipe. ;

(s) Billie. Richards

~. : Notary Public, Jefferson County, Ky.

> . .

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