from Shelby Circuit Court (DR-16-900711)
Alan Thomas ("the former husband") and Angel Mount
Thomas ("the former wife") were married in July
2005. In December 2011, they were divorced by a judgment of
the Shelby Circuit Court ("the trial court").
Although the former wife complied with the requirement in the
2011 divorce judgment that she convey her interest in the
parties' former marital residence to the former husband
by quitclaim deed, she never left the former marital
residence. Instead, she continued to reside there with the
former husband and the parties' child, whose custody had
been awarded to the former husband in the 2011 divorce
November 2016, the former wife filed a complaint in the trial
court seeking a divorce from the former husband and custody
of the parties' child. In her complaint, the former wife
alleged that she and the former husband "were married,
by common law, between December 2011 and November
2015." The former husband moved to dismiss the
former wife's complaint; in his motion, he sought an
evidentiary hearing on the issue of the existence of a
common-law marriage. The trial court held an evidentiary
hearing on February 23, 2017, solely on the issue of whether
the parties had entered a common-law marriage, after which it
determined that the parties had been married at common law.
The trial court then concluded the proceedings by holding an
evidentiary hearing on November 9, 2017, on the issue of
custody, after which it entered a divorce judgment divorcing
the parties and awarding custody of the parties' child to
the former wife. The former husband timely filed a
postjudgment motion, which the trial court denied after a
hearing. The former husband then timely filed a notice of
appeal to this court.
appeal, the former husband argues first that the trial court
erred by concluding that the parties had entered into a
common-law marriage. He also contests the award of custody to
the former wife. Because we find the first issue to be
dispositive, we consider only whether the evidence presented
at trial supports the trial court's conclusion that the
parties entered into a common-law marriage. See Favorite
Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala.
Civ. App. 2005) (pretermitting discussion of certain issues
in light of dispositive nature of another issue).
"The Alabama Supreme Court stated in Lofton v.
Estate of Weaver, 611 So.2d 335, 336 (Ala. 1992):
"'"Courts of this state closely scrutinize
claims of common law marriage and require clear and
convincing proof thereof." Baker v. Townsend,
484 So.2d 1097, 1098 (Ala. Civ. App. 1986), citing Walton
v. Walton, 409 So.2d 858 (Ala. Civ. App. 1982). A trial
judge's findings of facts based on ore tenus evidence are
presumed correct, and a judgment based on those findings will
not be reversed unless they are found to be plainly and
palpably wrong. Copeland v. Richardson, 551 So.2d
353, 354 (Ala. 1989). The trial court's judgment must be
viewed in light of all the evidence and all logical
inferences therefrom, and it "will be affirmed if, under
any reasonable aspect of the testimony, there is credible
evidence to support the judgment." Adams v.
Boan, 559 So.2d 1084, 1086 (Ala. 1990) (citation
and convincing evidence is
"'"[e]vidence that, when weighed against
evidence in opposition, will produce in the mind of the trier
of fact a firm conviction as to each essential element of the
claim and a high probability as to the correctness of the
conclusion. Proof by clear and convincing evidence requires a
level of proof greater than a preponderance of the evidence
or the substantial weight of the evidence, but less than
beyond a reasonable doubt."
"'§ 6-11-20[(b)](4), Ala. Code 1975.'
v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002).
"'In Alabama, recognition of a common-law marriage
requires proof of the following elements: (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. Stringer [v. Stringer], 689
So.2d [194, ] 195 [(Ala. Civ. App. 1997)], quoting
Crosson v. Crosson, 668 So.2d 868, 870 (Ala. Civ.
App. 1995), citing Boswell v. Boswell, 497 So.2d
479, 480 (Ala. 1986). Whether the essential elements of a
common-law marriage exist is a question of fact.
Stringer, supra, citing Johnson v. Johnson,
270 Ala. 587, 120 So.2d 739 (1960), and Arrow Trucking
Lines v. Robinson, 507 So.2d 1332 (Ala. Civ. App. 1987).
Whether the parties had the intent, or the mutual assent, to
enter the marriage relationship is also a question of fact.
See Mickle v. State, 21 So. 66 (1896).'
"Gray v. Bush, 835 So.2d 192, 194 (Ala. Civ.
Melton v. Jenkins, 92 So.3d 105, 106-07 (Ala. Civ.
App. 2012) (emphasis ...