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Thomas v. Thomas

Alabama Court of Civil Appeals

January 4, 2019

Russell Alan Thomas
v.
Angel Mount Thomas

          Appeal from Shelby Circuit Court (DR-16-900711)

          THOMAS, JUDGE.

         Russell 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 judgment.

         In 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."[1] 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.

         On 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 omitted).'

         "Clear 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.'

         "L.M. 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. App. 2001)."

Melton v. Jenkins, 92 So.3d 105, 106-07 (Ala. Civ. App. 2012) (emphasis ...


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