202 So. 3d 332
Ala. Civ. App.2016Background
- Elizabeth McMullins filed a verified complaint in July 2012 seeking a divorce, alleging a common-law marriage with Larry R. McMullins and requesting property division and alimony. Larry denied a common-law marriage and counterclaimed for property division and, conditionally, divorce based on adultery.
- Trial court, after hearing ore tenus evidence, found Elizabeth failed to prove a common-law marriage by clear and convincing evidence and dismissed the case with prejudice; Elizabeth appealed.
- Elizabeth testified the couple began living as husband and wife in 1987, lived together except for two separations, cared for her grandchildren together, and had joint financial interactions at times; she introduced Larry’s 2005 deposition in which he said they considered themselves common-law married.
- Multiple witnesses gave mixed testimony: some thought the parties were married or referred to one another as husband/wife; others said they slept in separate bedrooms or knew they never had a ceremony; some noted joint tax filings or joint accounts but testimony was inconsistent.
- The trial court concluded public recognition of the relationship as a marriage and public assumption of marital duties were not proven by clear and convincing evidence; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of common-law marriage (elements) | Elizabeth: showed capacity, present mutual agreement to be married, and public recognition/cohabitation | Larry: denied common-law marriage; evidence does not show public recognition or mutual present agreement | Affirmed: plaintiff failed to prove public recognition and assumption of marital duties by clear and convincing evidence |
| Sufficiency of testimony showing public recognition | Elizabeth: Larry’s 2005 deposition and witness testimony show they held themselves out as married | Larry: witness testimony was equivocal or contradicted; some knew they were never ceremonially married | Court: testimony conflicted and was not clear and convincing; trial court’s credibility findings stand |
| Weight of joint financial acts (taxes, bank accounts) | Elizabeth: joint tax returns and possible joint accounts indicate marital conduct | Larry: such acts are ambiguous and insufficient alone to prove public recognition | Court: financial indicia alone do not compel finding of common-law marriage; not enough here |
| Standard of review for ore tenus evidence | Elizabeth: appellate court should overturn trial finding | Larry: trial court credibility findings entitled to deference | Court: ore tenus rule applies; findings affirmed unless plainly and palpably wrong |
Key Cases Cited
- Gray v. Bush, 835 So.2d 192 (Ala. Civ. App. 2001) (elements required to establish common-law marriage)
- Stringer v. Stringer, 689 So.2d 194 (Ala. Civ. App. 1997) (common-law claims closely scrutinized; ore tenus deference)
- Baker v. Townsend, 484 So.2d 1097 (Ala. Civ. App. 1986) (clear-and-convincing proof required for common-law marriage)
- Walton v. Walton, 409 So.2d 858 (Ala. Civ. App. 1982) (discussing scrutiny of common-law marriage claims)
- Copeland v. Richardson, 551 So.2d 353 (Ala. 1989) (deference to trial court on ore tenus findings in disputed common-law marriage cases)
- Lofton v. Estate of Weaver, 611 So.2d 335 (Ala. 1992) (affirming no common-law marriage where evidence disputed)
- Melton v. Jenkins, 92 So.3d 105 (Ala. Civ. App. 2012) (joint accounts/taxes insufficient alone to establish common-law marriage)
- Adams v. Boan, 559 So.2d 1084 (Ala. 1990) (appellate review of trial court judgments under ore tenus rule)
- Dyess v. Dyess, 94 So.3d 384 (Ala. Civ. App. 2012) (restating common-law marriage element of public recognition)