Fleming v. Fleming , 221 Kan. 290 ( 1977 )

The opinion of the court was delivered by

Fatzer, C.J.:

This is an appeal from a judgment denying a motion to quash garnishment proceedings for the collection of past-due alimony and to terminate alimony granted in a previous divorce decree.

The basic facts which are not disputed follow: the appellee, Irene J. Fleming, was granted a divorce from the appellant, Frank M. Fleming, in 1969, and awarded alimony of $50 per week for one year and $30 per week thereafter until further order of the court. The payments were contingent on the death or remarriage of the appellee.

On February 26, 1974, the appellant filed a motion to terminate alimony payments, .alleging that the appellee had remarried. A hearing was held and on April 9, 1974, the motion was denied. At the hearing, the appellant’s sole contention was that the appellee had entered into a common-law marriage with Elmer Schlarman.

Subsequently, and on April 1, 1975, the appellant again filed a motion to terminate alimony, as well as a motion to quash a garnishment order which had been issued to collect delinquent payments. He again alleged the appellee had entered into a common-law marriage with Elmer Schlarman. He also contended that if such a marriage was not found to exist, it was nonetheless contrary to public policy to continue to compel him to pay alimony when his former wife was openly cohabiting with another man.

On April 21, 1975, at the hearing on these motions, the court excluded all evidence as to a common-law marriage between the appellee and Schlarman which dealt with conduct prior to the April 9, 1974, hearing. The court stated its previous ruling was res judicata on such matters, and further ruled the appellant had failed to sustain his burden of proving that a common-law marriage existed. The court also ruled there was no law in the state which would dictate termination of alimony under the circumstances presented. The divorced husband has appealed.

We first turn to the appellant’s contention the district court erred in concluding the evidence did not establish the existence of a common-law marriage.

In a long fine of decisions, this court has laid down the basic constituents which constitute a common-law marriage. They are: first, a capacity of the parties to marry; second, a present marriage agreement between the parties which may be shown by circumstantial evidence; and third, a holding out to the public as their being husband and wife. (See Pitney v. Pitney, 151 Kan. 848, 101 P. 2d 933; Gillaspie v. Blair Construction Co., 192 Kan. 455, 388 P. 2d 647; Sullivan v. Sullivan, 196 Kan. 705, 413 P. 2d 988; Schrader v. Schrader, 207 Kan. 349, 484 P. 2d 1007; and the most recent case, In re Estate of Keimig, 215 Kan. 869, 528 P. 2d 1228.)

It is not sufficient to prove one of these elements; they must all be established. In the instant case, there is no question as to the capacity of the parties to marry. However, a careful examination of the record discloses no present agreement to marry was established by the evidence, although there may have been evidence of consent to cohabit. In the absence of a present marriage agreement, it would serve no useful purpose to discuss the contention further. We conclude the district court did not err in finding that a common-law marriage was not established.

The appellant next contends the district court erred in prohibiting the appellant from establishing and relying upon the conduct of the appellee and Mr. Schlarman prior to the April 1974 hearing as their conduct and admissions tended to establish a common-law marriage. There is little merit to the contention.

The district court found, and properly so, that the evidence was not sufficient to establish a common-law marriage. We have been cited no Kansas case, and we have found none touching upon the question whether the doctrine of res judicata should apply. Re that as it may, 'the court is of the opinion there is no logical reason why the doctrine of res judicata should not apply to actions to establish common-law marriages, the same as in any other action. All litigation must be brought to an end. The continued trial on the same issues and the same fact or facts which were established at a previous trial would make the courts a vehicle for harassment.

The appellant claims no discovery of new evidence during the period prior to April 1974. The testimony of the witnesses at the April 1974 hearing is set out in the record. A careful examination discloses no evidence which would tend to prove a present marriage agreement between the appellee and Mr. Schlarman. The restriction of the evidence could not therefore have prejudiced the rights of the appellant.

The appellant makes a final contention the district court erred in failing to find that public policy prohibited the appellee from continuing to receive alimony from the appellant while maintaining over a period of years a relationship with Mr. Schlarman wherein she received all the benefits of marriage when the decree of divorce provided for a cessation of alimony upon the appellee’s remarriage.

It should first be suggested the appellee did not receive all of the benefits of marriage in her relationship with Mr. Schlarman because the very necessary element of support was lacking. There was no evidence of support nor was there evidence of a present agreement between the parties to be married, which would have constituted a common-law marriage and an implied legal obligation to support.

The appellant calls our attention to no cases which directly support his contention; however, he does quote from Herzmark v. Herzmark, 199 Kan. 48, 427 P. 2d 465, at page 54 where we state:

“. . . It is distasteful to permit a divorced wife to hold both her former husband under a decree of alimony and her present husband under the marital duty of support which inheres in every marriage contract.”

and again from the same page:

". . . It is a general principle in many courts that it is contrary to public policy for a woman to receive support from both a former and present husband.”

We find no fault with the statements made above; however, here we are not dealing with a former and a present husband. We are dealing with a former husband and a present boy friend with no obligation to support. Alimony is based on the obligation to support an ex-wife and is not to be measured in the future by her chastity or moral conduct.

Under the divorce deoree, the divorced wife was to receive alimony until her death or remarriage. It has not been established that either has occurred.

The judgment of the district court is affirmed.