In Re Estate of Soeder , 7 Ohio App. 2d 271 ( 1966 )

In reaching a decision it was necessary to analyze the record of testimony in this case and to interpret it in the light of the decisions of the courts of this state insofar as they are applicable.

In Carmichael v. State (1861), 12 Ohio St. 553, the Supreme Court (through Gholson, J.) stated on page 559, that:

"* * * The requisites to constitute a valid marriage, independent of any positive law, have been stated in many authorities, but it must still be a question on the facts of the particular case. It may be, that in most cases a ready answer may be given upon any statement of the facts, whether there was a marriage or not, and those who were present at the time the consent was given, and cognizant of the conduct, toward each other, of the parties thereafter, could very rarely fail in forming a correct conclusion. * * *."

An examination of the cases subsequent to Carmichael reveals that the Supreme Court carefully examined the facts in each case. While the Supreme Court may have strayed from its formula in theCarmichael case when deciding the case of In re Estate ofRedman (1939), 135 Ohio St. 554, it was quick to correct itself in Markley v. Hudson (1944), 143 Ohio St. 163, which is the most recent decision of that court on this particular subject. The Supreme Court in the Markley case reversed the Court of Appeals, which had relied on the Redman decision, and stated on page 167 (Hart, J., speaking) that:

"* * * This court still adheres to the doctrine that it is essential to show an agreement between the parties in praesenti to become husband and wife in order to establish a common-law marriage, but this does not mean that such proof must establish an express agreement resulting in contract, or that such result may not be established by circumstances from which an agreementin praesenti may be inferred. * * *."

In commenting upon the Supreme Court's decision in theMarkley case, the Court of Appeals for Stark County, in the case of Ryan v. Ryan (1948), 84 Ohio App. 139, stated (Montgomery, J.) on page 144:

"* * * the principle announced in the Redman case was explained and broadened by the later decision of the Supreme Court in the case of Markley v. Hudson, 143 Ohio St. 163,54 N.E.2d 304. So that in our judgment the Redman case is no longer of any value. * * *."

The court then reiterated the rule announced in theCarmichael case, after which it continued with the declaration that when dealing with common-law marriages each case must be decided upon its particular fact situation.

"* * *. And, as stated by the Supreme Court in the course of the opinion in the case of Johnson v. Wolford, 117 Ohio St. 136,141, 157 N.E. 385, all common-law marriage cases are decided upon the peculiar facts of those cases. * * *"

The important factor in common-law marriage appears to be the intent of the parties, i. e., did they intend a marriage. This intent may be inferred from the contract of marriage alone where there is direct testimony to such contract. However, where such evidence is not available, the courts will look to the conduct of the parties. From this conduct, the courts will determine the intent of the parties. So, in the Markley case, the court stated that the conduct of the parties established the contract of marriage.

The clearest discussion of the question of the intent of the parties is the decision of the Supreme Court in the Carmichaelcase, supra. In reaching its judgment, that court relied solely on an English case, The Queen v. Millis, 10 Cl. Fin. 544, 17 English Ruling Cases 66, wherein the court stated that in all cases the words "in praesenti" may not be sufficient to prove marriage and the court may rely upon other circumstances to prove the intent of the parties. The court in Carmichael (12 Ohio St. 553) quoted extensively from that case, on page 560, as follows (quoting in part, Lord Broughan in Millis):

"* * * `I do not say all marriages are valid where verba depresenti are used. Those marriages only are so, where the force and effect of the verba de presenti are to bind the parties by this contract, without reference to, or contemplation of, any future ceremony. If the parties plainly contemplate a future solemnization, they only bind themselves in the event of that taking place, then their contract is executory and conditional, not executed and absolute.' Id. 708. `A solemn contract ofmarriage executed per verba de presenti, does in fact constitutea marriage.' Id. 821, Lord Denman. To constitute a marriage, it must appear from the acts of the parties, for words on such an occasion are acts forming a part of the res gestae, that they did, in the homely but strong language of our statute, `join together as husband and wife.'" (Emphasis added.)

In the instant case there is a unanimity of opinion that the parties contracted by words in praesenti to marry — this is clearly revealed by the record of evidence. There was no need, as in the Markley case, to prove the contract by circumstantial evidence. Furthermore, the record is replete with testimony by uninterested witnesses that the parties to the marriage contract cohabited and that they held themselves out as husband and wife to friends, family, acquaintances and business associates. The record, I believe, reveals the requisite intent of the parties by their conduct and brings the case within the spirit of theMarkley decision.

Cohabitation was clearly established.

Catherine Soeder, sister-in-law of the decedent, testified as follows:

"Q. Did you know, of your own personal knowledge, whether Catherine and Ed ever went to Florida together? A. Yes.

"* * *

"Q. Do you know whether Catherine and Ed went to Florida with any other people? Yes or no. A. Yes.

"Q. Who were these other people? A. Well, one year there was Daisy and her husband, Dick Towns.

"Q. How were they related? A. Daisy is Ed's sister.

"Q. Daisy is Ed's sister? A. Yes."

Then, later, Leo Daniel O'Connell testified that the appellee and the decedent stayed together overnight at his home.

"Q. Do you know of your own personal knowledge whether Ed Soeder and your sister occupied the same room in the house at Woodbridge? A. Well, yes.

"Q. Did he have clothing in that house? A. Yes, he had several pieces of clothing.

"Q. What were those pieces of clothing? A. Slacks, some sport shirts, a few sport-type jackets, loafer jackets, shoes, socks, the usual things you would have if you were going to have changes of clothing or such."

Veronica Saley testified the parties stayed together at the appellee's home.

"Q. Now, this might be a little embarrassing to you. Were you ever with them when Ed and Catherine shared the same bedroom? If so, when and where? A. Well, there were a couple of times when we had card parties, which we stayed late at night. Margaret is a very good card player. I mean at times she plays a couple days at a time and a lot of times when — I am just a beginner, but anyway they were teaching me how to play gin rummy and some poker games which I wasn't too well acquainted with. There were times we would stay way past one, two o'clock at night, and I would stay the night, and Catherine and Ed would stay also. This was on Denison."

Then on cross-examination, she testified as follows:

"Q. All right. Can you tell us the basis as to how you know that Ed, at any time, ever stayed overnight? Didn't you leave after the card party was over with? A. I think I just told you before that there were times when I had stayed there overnight also, and they also stayed.

"Q. You also stayed overnight? A. Right.

"Q. And was Catherine's mother there at any time when Ed stayed there overnight? A. She lives there. That is right."

Margaret then testified, by deposition read into evidence, that the appellee and the decedent cohabited in Florida as husband and wife; and that they lived together in an apartment which she rented to them.

"Q. Have you ever had any tenants or did you ever sell to anyone known as Soeder? A. I rented to a Mr. and Mrs. Soeder.

"Q. What were their full names, if you know? A. When I rented it to them, I thought their name was Edward or Ed Soeder and Catherine Soeder.

"Q. Where did they come from, as far as you knew? A. Cleveland, Ohio.

"Q. Who paid the rent, if you remember? A. At times he paid and sometimes she paid."

Margaret Otten testified as follows:

"Q. Why did you think they were man and wife? What caused you to form the impression they were man and wife? A. Just because they came together to rent an apartment. It was no different than anybody else that came."

Margaret McCullough testified that she saw Ed Soeder, the decedent, and the appellee at the appellee's home many times, and that the appellee and the decedent stayed at her home overnight on several occasions. She testified as follows:

"A. Well, there was times when I saw him in pajamas and a robe and house slippers, and also my sister was dressed in her robe and pajamas and slippers.

"* * *

"Q. Were there ever occasions that you were present in your sister's home when other persons were present? A. Many times.

"* * *

"A. Especially when we had card games there."

Then, she testified as follows:

"Q. Could you state whether or not Ed Soeder ever stayed at your home overnight?

"* * *

"A. Oh, yes.

"* * *

"Q. How many times a year would he stay at your home overnight? A. Well, like I say, we had card games at my home also, and it was always late when these games finished, and he would stay there."

She testified, further, as follows:

"Q. Did Ed keep any articles of clothing at your home? A. Yes, sir.

"Q. What did he keep there? A. Sleeping apparel.

"Q. Is it still at your home? A. Yes, Sir."

The holding out of the parties to others that they were husband and wife is established through testimony in the record. Joseph Bartoff, the restaurant man, testified that the decedent introduced the appellee as his wife.

"Q. Did he ever introduce you to Mrs. Soeder. A. Yes, very gently."

Catherine Sands testified that she knew the appellee as the wife of the decedent:

"Q. But you have known her as Catherine Soeder? A. Yes."

Again, she testified that the appellee wore a diamond ring:

"Q. What type of ring was it? A. It was an engagement ring.

"Q. Did Catherine ever wear it? A. All the time."

Catherine Sands testified further as follows:

"A. She was known as his wife.

"Q. Now, what friends were ever in your presence? Can you give some names, please? A. Well, there was Mrs. Bobacheck, of course, she is deceased, and her family was there, and Ronnie was there."

Again, she testified:

"Q. Now, tell me, in 11 years, any other persons that you might have been in company with with Catherine and Ed that knew them as husband and wife. Think and take your time. A. Well, Mr. and Mrs. Wilcox and there was a Mrs. Bertha Monk, and I am not sure, a Mr. and Mrs. McCormack. Well, I know all of Catherine's family was there, that is for sure. I can't remember all these names."

Madelyn Hakaim testified that the appellee and the decedent were known as husband and wife.

"Q. At the race track, did you meet other people? A. Yes, I did.

"Q. Did other people associate with Ed and Catherine at the race track? A. Yes.

"Q. As far as you know, do you know how those people addressed Catherine and Ed. A. Yes, I do.

"Q. How? A. Mr. and Mrs. Soeder."

On cross-examination, Madelyn Hakaim testified further as follows:

"Q. But just to make sure I understand your testimony, did you actually go up to this redheaded girl and say `Where is Catherine, Ed's wife?' A. Yes.

"Q. And this redheaded girl is supposed to have said, `She is ill?' A. She wasn't there that night, she was ill."

Catherine Soeder, sister-in-law of the decedent, testified that the decedent and the appellee were known as husband and wife at the Stadium where they sold refreshments.

"Q. What kind of work did Catherine and Ed do at the Stadium? A. She dispensed cones and cashiered.

"Q. Were they known there, if you know, as husband and wife? A. To my knowledge, I would say yes."

Leo Daniel O'Connell testified that the appellee was known as Mrs. Soeder and that the decedent introduced the appellee as his wife.

"A. And at the various — it is hard to pin this down because he met so many people when we were out. He was in the business, and even the proprietors spoke of my sister as `Mrs. Soeder' when they would come in."

Then, he testified further:

"Q. Did he ever introduce your sister in any other fashion than Mrs. Soeder? A. He would say `Catherine, my wife.'"

William J. Jones, an employee at the Federal Reserve Bank, testified that he knew the appellee all his life and that he had known the decedent for fifteen or twenty years and that the decedent introduced the appellee in public at different affairs.

"Q. How did he introduce her? A. Well, he'd introduce her as his wife."

Phillip Comella testified that the appellee and the decedent were introduced to him as Mr. and Mrs. Soeder.

"A. Mr. Soeder didn't introduce her as his wife. I was introduced to them by Ray Strabley as Mr. and Mrs. And neither of them corrected that. So I assumed they were man and wife."

Margaret Otten testified, through her deposition which was read into the record, that the decedent and the appellee held themselves out as husband and wife and were known as such, and as follows:

"Q. Would you tell me what claimant Catherine M. Soeder's exhibit No. 1 for identification is? A. This is a receipt that I had given to Kay Soeder, February 12, 1961, for one week's rent."

Again, she testified how she introduced the decedent and the appellee to others:

"Q. Did you ever introduce Mr. and Mrs. Soeder to anyone? A. I distinctly remember, but I don't remember to whom I did.

"Q. How did you introduce them? A. As Mr. and Mrs. Soeder."

Alice Chance Rosenthal of Phoenix, Arizona, testified at length, by means of deposition read into the record at the time of trial, as to the relationship of the appellee and the decedent.

"A. Well, the first time I met Ed was in Key West. My husband and I were in Key West, I think it was either February or March, when I met Mr. Soeder. And at the time, a big black car drove up to our door and Sam said: `Oh, that must be Ed Soeder and his wife because he promised to come down and visit us.'"

Then, she testified further as follows:

"Q. Was Mrs. Soeder introduced to you? A. As Mrs. Soeder, yes.

"Q. And who was Mrs. Soeder? Was that Catherine Soeder? A. Catherine Soeder, yes.

"Q. And just tell us again, what terms were used in your introduction. A. As far as I know —

"Q. Who introduced you? A. Well, if I can — I don't really remember it exactly, but I know. Sam said, `Oh, that must be Ed Soeder and his wife because he promised to come down to Key West if they got to Florida.'

"And then we went out to the car and then they came into our apartment and were introduced as Mr. and Mrs. Soeder."

Then, she testified:

"A. Well, as far as I know it was in — when we got back to Cleveland, when we were invited out by Ed and — As I say, Mr. and Mrs. Soeder.

"And I think we went to the, I don't know, Green Gables or Greenbriar Restaurant, or some place, for dinner and — with Mr. and Mrs. Soeder.

"Q. And how did Mr. Soeder, or did he, refer to Catherine? In any particular manner? A. Well, as any husband refers to a wife, you know. I don't — as `Mrs. Soeder,' `Catherine,' `my wife.'"

Then, her testimony is as follows:

"A. Oh, yes, especially in 1960. We met quite a few times when we — we were staying at the Continental, I believe, Hotel there. They had a car, we didn't, so they always picked us up wherever we wanted to go.

"So they used to come and pick us up, and we would go out to dinner at — one time we met quite a few friends of Sam's at the Americana. We all had dinner together and we were — Sam introduced them as Mr. and Mrs. Soeder. He never knew anything different.

"Q. Did you hear Mr. Soeder introduce Catherine? A. Oh, yes, often.

"Q. How would he introduce her? A. He would — he would say, `my wife, Catherine.'"

Then, her testimony reads as follows:

"A. And at that time he said, `Well,' he said, `my wife will never have to worry' he said, `because I have fixed it so she will always have an income, she will never have to work as long as she lives; she will be provided for.'

"Q. And was or was not Catherine present at that time? A. Oh, yes, Catherine was right there when he said it. He said it so casually that — I knew right then and there that he had already provided for her.

"Q. And did you ever have occasion to meet with Ed and Catherine Soeder in their home on Woodbridge Avenue? A. I was there for dinner several times."

Alice Rosenthal testified that the appellee received mail while visiting her lodge as Mrs. Edward Soeder.

"Q. Did she ever receive any mail that you know of? A. Oh, yes. She got mail from her mother, from Ed, her husband.

"Q. How would the envelopes be addressed? A. Well, it would be `Mrs. Edward Soeder,' and from — I know at one time they were from the milk company, Soeder Company. I don't know just how the milk company was listed. I think it was — because it was Ed's father who owned the milk company before he had.

"Q. And they would be addressed how, and to whom? A. Oh, to `Mrs. Edward Soeder.'

"Q. And of course would she receive them? A. Oh, sure; sure, she would get them. Sure, we gave her her mail, yes."

The cross-examination of Alice Rosenthal establishes further that during 1960 while in Florida the decedent and the appellee were introduced as husband and wife.

Another witness, John O. Dissinger, testified upon rebuttal that he introduced the appellee and the decedent as husband and wife.

Again, he repeated the same and added, "It was assumed most of the time."

On rebuttal, Margaret McCullough testified as to the reputation of the appellee and the decedent with regard to their marital status among people who knew them both: "They were always considered man and wife."

Alvin Fridelander, general manager of Berlo Company, testified he believed that the appellee and the decedent were married, as a result of conversation of his employees and he adds, in answer to a question about how Ed referred to the appellee:

"A. I have heard him refer to her as `my wife.'"

In reviewing the entire record, I can conclude only that a common-law marriage was established by the requisite evidence. To hold otherwise, would be to reverse the unanimous decision in the case of Sirbello v. McDonald (Case No. 25946, 8th District Court of Appeals), wherein this court found a common-law marriage existed upon facts far less conclusive than those in this case.

In the Sirbello case, James Sirbello claimed to be the common-law husband of Jean Thompson. He was a convicted felon, married and divorced three times. Sirbello worked as a bartender in a bar owned by his alleged common-law wife. In that case, not only did the decedent keep all papers and legal documents in her own name, but the decedent's sisters and sister-in-law swore that they had never heard of the purported husband, even though the family was close. Sirbello had gone on only one trip with the decedent — to Buffalo — for two days and had known his alleged wife for only three years.

Where the contract of marriage has been proved by direct, rather than circumstantial, evidence, the nature and extent of the subsequent cohabitation and holding out is not important. What is important is that the parties did cohabit and that they did hold themselves out as husband and wife. This view is supported by the opinion of the Court of Appeals for Franklin County in the case of Gatterdam v. Gatterdam (1949), 86 Ohio App. 29. An appeal to the Supreme Court was dismissed in 151 Ohio St. 551. In the Gatterdam case the Court of Appeals sustained a common-law marriage where the parties lived in a tourist camp for twelve days and held themselves out as husband and wife. In a thorough discussion of the Supreme Court's decision in theRedman case and the Markley case, the Court of Appeals found there was a sufficient holding out of the parties to sustain the second paragraph of the syllabus: the common-law marriage, a contract of marriage in praesenti having been established by the evidence. Reaching this decision, the court (through Hornbeck, J.) states on pages 38 and 39 that:

"This extended discussion is only indulged in an effort to determine whether both cohabitation and a holding out must be proven in addition to the bare proof of the contract to marry. There is both cohabitation and holding out in the record. Quaere, was the holding out sufficient to meet the requirement of the law?

"The disturbing cases are those of In re Estate of Redman,135 Ohio St. 554, 21 N.E.2d 659, and Markley v. Hudson, supra. The Redman authority is a per curiam in which language of the opinion is presumed to be the expression of every member of the court. In the Redman case, the issue upon which the determination rested was whether there was any proof of a contract of marriage in terms of present tense. The court says that the essential requirements of marriage are stated in the syllabus of Umbenhower v. Labus, supra [85 Ohio St. 238], which we have heretofore discussed:

"Markley v. Hudson holds that the agreement to marry inpraesenti may be proven by acts, declarations and conduct of the parties and their recognized status in the community in which they reside. * * *. But it does not determine that the repute of the marital relation in the community in which the parties live must be established if the requirements as to the contract aremet by specific proof, followed by cohabitation as husband andwife.

"We are convinced, as was the trial judge, that this marriage was, or was not, complete when the parties left the tourist camp. Had the parties gone back to Columbus and held themselves out there as husband and wife, it would have resulted in more evidence of the marriage but it could not have changed theirstatus." (Emphasis added.)

In addition, in the well-reasoned decision of In reMcLaughlin's Estate (P. C., 1963), 93 Ohio Law. Abs. 228, affirmed by the Court of Appeals and motion to certify the record overruled by the Supreme Court, the court held that even when there was conflicting evidence as to cohabitation and the holding out of the parties as husband and wife, a valid common-law marriage was established.

Further, as stated by Judge Lee E. Skeel of this court, in the case of Nyhuis v. Pierce (1952), 65 Ohio Law. Abs. 73, at page 75:

"If the relationship of husband and wife at common law is once fully established, subsequent doubt thereafter by either party can have no legal effect."

This entire court affirms the finding of the court below that the appellee established by clear and convincing evidence a mutual agreement to marry in praesenti. The only point of material disagreement is as to proof of cohabitation and holding out of the parties. In reading this record, as set forth in part herein, I firmly believe that both the cohabitation and the holding out are proved by clear and convincing evidence.

The majority opinion has expressed its view on the sanctity of common-law marriage, and with this I can find no fault. I am not in favor of encouraging common-law marriages, but as long as the law of Ohio permits and recognizes them, we are compelled to follow it.

To hold otherwise than that a common-law marriage was established in this case not only constitutes a reversal of the decision of this court in the Sirbello case, but places us in direct conflict with decisions of other Courts of Appeals of this state. See, Gatterdam v. Gatterdam, 86 Ohio App. 29, and In reMcLaughlin's Estate, 93 Ohio Law. Abs. 228. It would also divert us from the principles espoused in the Markley case. It should be kept in mind that all these cases were decided subsequent to the Redman decision, which seems to have been relied upon by the majority opinion in reversing the lower court.

I. In conclusion, to paraphrase the Supreme Court in theCarmichael case: "each case rests on its own bottom."

In carefully examining the record of testimony and evidence in this case, I reach the inescapable conclusion that all the elements of a common-law marriage are directly proved. Not only was the contract of marriage in praesenti proved by direct and unimpeached testimony, but also open cohabitation and a holding out by the parties that they were husband and wife were clearly established by sufficient uncontradicted testimony. In this regard I disagree with the court below and with my colleagues of this court.

II. With regard to the Probate Court refusing to allow the testimony of Father Casper Heimann, Father Victor Ranly, and Monsignor Kirby, and the unfortunate excusing of Father Butler, I find that, while this might have been error, it was not error of a degree so as to be prejudicial to the estate. Regardless of what testimony and evidence might have been offered, I am of the firm opinion that the record of testimony of nonclergy witnesses, as aforesaid, clearly meets the Ohio requirements to establish a common-law marriage. The testimony of the priest could in no way have prejudiced this testimony.

I must further assume that the court below had valid legal reasons for exclusion of the testimony; with that judgment we should not interfere. See, 58 American Jurisprudence 297, Witnesses, Section 532.

III. With regard to all other exceptions raised and not specifically dealt with above, I concur with the finding and opinion of my colleagues.