Parker v. Parker , 46 N.C. App. 254 ( 1980 )

265 S.E.2d 237 (1980)

Minnie Lee PARKER
v.
Jessie L. PARKER.

No. 794DC908.

Court of Appeals of North Carolina.

April 15, 1980.

Cameron & Collins by E. C. Collins, Jacksonville, for plaintiff.

Charles S. Lanier, Jacksonville, for defendant.

WELLS, Judge.

The question presented in this appeal is whether the evidence supports the trial court's conclusion that there was no valid marriage between plaintiff and defendant. Defendant had the burden of showing by a preponderance of evidence that the South Carolina marriage ceremony between the parties was invalid. "It is presumed that a marriage entered into in another State is valid under the laws of that State in the absence of contrary evidence, and the party attacking the validity of a foreign marriage has the burden of proof." Overton v. Overton, 260 N.C. 139, 144, 132 S.E.2d 349, 352 (1963). When two marriages of the same person are shown and both parties to the first marriage are living at the time of the second marriage, the second marriage is presumed to be valid and the first marriage dissolved by divorce. Denson v. Grading Co., 28 N.C.App. 129, 220 S.E.2d 217 (1975). These presumptions are said to arise because the law presumes innocence and morality in such circumstances. Chalmers v. Womack, 269 N.C. 433, 152 S.E.2d 505 (1967); Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871 (1945); Denson v. Grading Co., supra. Proof that one party had not obtained a divorce is not sufficient to overcome the presumption. Id.

Under the laws of South Carolina, where the marriage ceremony between plaintiff and defendant occurred, "All marriages contracted while either of the parties has a former wife or husband living shall be void." S.C.Code § 20-1-80. While a spouse is still married he may not enter into a common law marriage by cohabitating with another woman. Byers v. Mount Vernon Mills, Inc., 268 S.C. 68, 231 S.E.2d 699 (1977). In the case at bar there was evidence that plaintiff had never obtained a divorce from Black. Prior to the 1972 divorce of plaintiff from Henry Black, plaintiff investigated to determine if Black had obtained a divorce from her. Plaintiff testified, "I went to my lawyer and asked him if Henry Black was divorced from me, and was I also divorced, and he said no." We believe this testimony was sufficient to rebut the presumption in favor of the validity of plaintiff's marriage to defendant in 1956.

Although it is undisputed that the parties have not participated in a marriage ceremony since the 1972 divorce of plaintiff from Henry Black, plaintiff argues that since the time of this divorce a common law marriage was created between plaintiff and defendant in South Carolina. Despite the fact that plaintiff maintains she was born in South Carolina and has remained a resident of that State, there is ample evidence in support of the trial court's finding that both parties have surrendered their South Carolina residence and become residents of North Carolina. That fact is not controlling. Plaintiff's unrebutted evidence was that following the divorce from Black in 1972, she and defendant lived together as man and wife in South Carolina for approximately six weeks. The plaintiff and defendant could have contracted a common law marriage in South Carolina during that period. Our Supreme Court stated in Harris v. Harris, 257 N.C. 416, 420, 126 S.E.2d 83, 85 (1962): "If the relation of plaintiff and defendant subsequent to [one of the party's] valid divorce was sufficient to constitute a valid marriage in South Carolina, such marriage would be given full recognition in this State." See also, Restatement (Second) of Conflict of Laws § 283(2), Comments f, g (1971).

Under South Carolina law a common law marriage is established when the parties mutually agree to assume towards one another the relation of husband and wife. Johnson v. Johnson, 235 S.C. 542, 112 S.E.2d 647 (1960). While removal of an impediment to marriage, e. g., the undissolved marriage of one of the parties, does not ipso facto convert the party's relationship into a common law marriage, the marriage relationship may be created by a new mutual agreement to enter into a common law marriage. Kirby v. Kirby, 270 S.C. 137, 241 S.E.2d 415 (1978). The agreement need not be express; it may be adduced from circumstances, such as the parties' representation to the community that they are husband and wife. Id. While we can find no South Carolina authority requiring a minimum period of cohabitation within the State for establishment of a common law marriage, we note that in general, where establishment of the relationship is dependent upon an agreement between the parties to act toward one another as husband and wife, no such minimum period of cohabitation has been required. See, Bloch v. Bloch, 473 F.2d 1067 (3rd Cir. 1973) (agreement to be husband and wife during three-day vacation to jurisdiction recognizing common law marriage sufficient to establish the existence of such marriage).

It is incumbent upon the trial judge to make findings and conclusions determinative of the issues raised by the evidence. It is clear that in the case before us, plaintiff's evidence has raised an issue as to whether a common law marriage was entered into by plaintiff and defendant in South Carolina after the plaintiff obtained the divorce from her first husband.

Vacated and remanded for further proceedings consistent with this opinion.

HEDRICK and WEBB, JJ., concur.