Appeal from Calhoun Circuit Court. (DR-94-971). Jack W. Hughes, TRIAL JUDGE.
Released For Publication February 20, 1996.
Crawley, Judge, Robertson, P.j., and Thigpen, Yates, and Monroe, JJ., concur.
The opinion of the court was delivered by: Crawley
Bruce Crosson and Barbara Crosson were married in February 1982 in a ceremonial marriage. The Crossons were divorced in June 1993. It is undisputed that after the divorce Mr. Crosson asked his former wife to come back and be his wife. Mrs. Crosson (the "wife") accepted the invitation to move back in with Mr. Crosson (the "husband"). *fn1 They began living together in August 1993.
Unknown to the wife, the husband married another woman in October 1994. Upon discovering that fact, the wife immediately sued for a divorce from the husband, contending that she was his common-law wife, and that he had committed adultery and bigamy, and that there was an irretrievable breakdown of the marriage.
The trial court found that the wife had failed to prove a common-law marriage and dismissed her complaint for divorce. At the Conclusion of the testimony, the trial court stated:
"When these [elements of common-law marriage] are met there is a presumption that a man and woman are married, however, that presumption does not exist where the parties are separated and one of the parties marries under a legal marriage. That is subject to rebuttal but it takes a very strong rebuttal to reach to the level of common law marriage to basically void a legal marriage or a ceremonial marriage. . . . Based upon the testimony that has been presented the court has no recourse but to find that there did not exist a common law marriage at this time in this case and dismiss the petition for divorce."
The trial court's final judgment simply stated, "The Plaintiff's Complaint for Divorce is hereby DISMISSED, the Plaintiff having failed to prove the existence of a common law marriage." The trial court, in reaching its decision, applied this principle of law stated in White v. White, 225 Ala. 155, 158, 142 So. 524, 526 (1932): "The presumption of an actual marriage from the fact of cohabitation, etc., is rebutted by the fact of a subsequent permanent separation, without apparent cause, and the actual marriage soon after of one of the parties." (Citations omitted.)
We must determine if the trial court erred in finding that a common-law marriage did not exist between the parties, on the basis that the husband's marriage to another vitiated the presumption of the common-law marriage between the parties.
The first issue is whether the parties entered into a common-law marriage.
"This Court has recently reaffirmed the requirements for a common-law marriage in Alabama in Etheridge v. Yeager, 465 So. 2d 378 (Ala. 1985). In that opinion, citing various cases as precedent, we held that while no ceremony or particular words are necessary, there are common elements which must be present, either explicitly expressed or implicitly inferred from the circumstances, in order for a common-law marriage to exist. Those elements are : 1) capacity; 2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and 3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation."
Boswell v. Boswell, 497 So. 2d 479, 480 (Ala. 1986) (citations omitted). "No specific words of assent are required; present intention is inferred from cohabitation and public recognition." Waller v. Waller, 567 So. 2d 869, 870-71 (Ala. Civ. App. 1990) (citation omitted). In Copeland v. Richardson, 551 So. 2d 353, 355 (Ala. 1989), our Supreme Court stated, "This Court has recognized valid common law marriages between parties who were once formally ...