Owen v. Watts, Franklin Court of Appeal (2013)
Owen v. Watts
Franklin Court of Appeal (2013)
Thomas Owen appeals from an order granting summary judgment in favor of Cora Watts, decedent Ruby McCall’s surviving sister and personal representative, in her action for possession of McCall’s home at 316 Forest Avenue. Owen refused to leave the home after McCall’s death, claiming that he was McCall’s common law husband and that he was therefore entitled to a possessory dower interest in the property. The trial court held that Owen and McCall had never entered into a common law marriage. The court further held that Owen could not claim an interest in the property. Owen appeals.
The record before the trial court on the motion for summary judgment reveals that Owen moved into McCall’s home some time after her husband’s death in 1991 but before his own divorce in 1996. Owen testified on deposition that following his divorce, he asked McCall to marry him, but that McCall refused because marriage would jeopardize her continued entitlement to a benefit check she was receiving as a result of her late husband’s death. Owen testified that, over the years, he repeatedly asked McCall to marry him but that she refused these requests for the same reason. Owen claimed that McCall finally agreed in 2010 to marry him in 2011 but that she died before the marriage could take place. Cora Watts, McCall’s sister, stated in an affidavit that McCall had told her that she had no intention of ever marrying Owen.
Owen represented that he and McCall cohabited and maintained joint bank accounts. He also produced affidavits from two members of the community who regarded him and McCall as husband and wife. Owen offered no evidence, however, that could persuade a rational and impartial trier of fact that, after his divorce, he and McCall had ever manifested an agreement that they were married, as opposed to a belief that they would become married at a later date.
Owen testified that, at the time he moved in with McCall, “she said, ‘I want you to come and live with me. I want that we will be as husband and wife.’” He claimed that he “said okay” and moved in with her. He further related that he moved in “because she asked me to come and live with her and make our home together as long as we both shall live, until death do us part.”
These words, however, were evidently spoken at a time when Owen was already married and not yet divorced, and therefore could not legally agree to marry McCall. Owen was not divorced until October 22, 1996.
Under Franklin law, a common law marriage requires agreement by parties legally capable of entering into a valid marriage that they have a marriage relationship. Cohabitation continued after the removal of a legal impediment cannot ripen into a common law marriage unless it was pursuant to a mutual consent or agreement to be married made after the removal of the barrier.
Owen and McCall conducted their business affairs as single persons rather than as a married couple. McCall referred to herself as single, or as a widow who had not remarried, in deeds and other documents relating to property transactions, as well as in her tax returns. Similarly, in her will, McCall referred to Owen as a “friend” and left him a bequest in that capacity.
The question before the trial court was whether any impartial trier of fact could reasonably find by a preponderance of the evidence that Owen was McCall’s common law husband. We agree with the trial court that no reasonable judge or jury could so find.
Franklin has long recognized common law marriages, the elements of which are a manifestation of mutual agreement, by parties able to enter into a valid marriage, that they are presently married, followed by cohabitation of at least one year, including holding themselves out to the community as being husband and wife. East v. East (Fr. Ct. App. 1931).
Since ceremonial marriage is readily available and provides unequivocal proof that the parties are husband and wife, claims of common law marriage should be closely scrutinized, especially where one of the purported spouses is deceased and the survivor is asserting such a claim to promote his financial interest. The burden is on the proponent to prove, by a preponderance of the evidence, all of the essential elements of a common law marriage.
Owen’s testimony established at most that he and McCall had, by the end of her life, agreed to be married at an unspecified future time. This is insufficient to establish the existence of a common law marriage under Franklin law.
For the foregoing reasons, the judgment of the trial court is hereby AFFIRMED.
