Brown v. Imboden , 28 Ark. App. 127 ( 1989 )

James R. Cooper, Judge.

The only issue in this appeal from the Craighead County Probate Court is whether the court erred in finding that the appellant, Mae Ireland Brown, is not the legal surviving spouse of the decedent, Bill D. Brown. We reverse and remand.

The parties stipulated to the facts involved in this case. Bill Brown married Roberta Barksdale in 1963, and they were divorced in 1974. They had two children, Wayne and Rickey Brown. Roberta, as guardian of Rickey Brown, is an appellee in this appeal.

After his divorce from Roberta, Bill married Brenda Brown. They later separated and Brenda filed for divorce in March 1978. There were no children born of this union. On April 14,1980, the Craighead Chancery Court dismissed the divorce action for lack of prosecution.

The appellant, Mae Ireland Brown, believing Bill was divorced, married Bill on March 30, 1979. Mae Brown testified that in January or February of 1981, she was contacted by Brenda who informed her that there had been no dissolution of the marriage between Brenda and Bill. Mae stated that she immediately left Bill and did not live with him again until they were remarried on June 27, 1981.

On February 18, 1981, the chancellor set aside the April 14, 1980, order dismissing Brenda’s 1978 petition for divorce and on February 27, 1981, Bill filed an answer and a counterclaim seeking a divorce from Brenda. A hearing was held on June 8, 1981, on the divorce complaint. Bill Brown, Mae Ireland Brown, Brenda Brown, and Mae Brown’s daughter were present. Mae testified that she attended the hearing at Bill’s insistence, and that at the conclusion of the hearing the trial judge stated that they were “as single people.” However, the divorce decree was not filed with the chancery clerk until July 1, 1981, four days after the appellant and Bill had remarried. Therefore, the decree did not become effective until July 1, 1981, and the June 27, 1981, marriage between Bill and Mae was invalid. See Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989).

Bill died intestate on December 17,1987. After a hearing to determine heirship, the probate court found that Mae was not the legal surviving spouse of Bill Brown and that their purported marriage on June 27, 1981, was void ab initio. On appeal, the appellant contends that the appellees should have been estopped from questioning the validity of her marriage to Bill. We agree.

Initially we note that, although the appellant never specifically pled estoppel, the record clearly shows that the case was tried on an estoppel theory by implication. The relevant dates of the marriages and divorces involved were stipulated to by both parties, and the appellant testified at length regarding her reliance on Bill Brown’s assertions that he was in fact divorced. Moreover, the appellees, in their brief, do not assert or rely upon any failure on the part of the appellant to raise estoppel as an affirmative defense. Under these circumstances, we think that the issue was tried by the implied consent of the parties, and we treat the pleadings as amended to conform to the proof. Ark. R. Civ. P. 15(b).

As stated in Fox v. Fox, 247 Ark. 188, 444 S.W.2d 865 (1969):

The theory [of estoppel] is that the marriage is not made valid by reason of the estoppel but that the estopped person may not take a position that the divorce or latter marriage was invalid.

[T]he defendant by reason of his conduct will not be permitted to question its validity or the divorce; so far as he is concerned, he and the plaintiff are husband and wife.

247 Ark. at 199. In the present case, it was the decedent who initiated the remarriage of himself and the appellant, and it was at his insistence that she attend the divorce hearing. The evidence shows that the appellant relied, in good faith, on the validity of Bill’s divorce from Brenda and relied in good faith on the validity of her marriage to Bill for almost seven years. On our de novo review, Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983), we find that Bill was at least culpably negligent in not determining that his divorce decree was final before initiating his remarriage with the appellant and that he would have been estopped to deny that the decree was final. See J.F. Hasty & Sons v. Hampton Stave Co., 80 Ark. 405, 97 S.W. 675 (1906).

By this holding, we do not declare the validity of common-law marriage in Arkansas. A legal common-law marriage cannot be entered into in Arkansas, nor can one be created by estoppel, but equity can, and we hold that it does, under the facts in this case, require that the parties be estopped from denying the validity of a marriage. Fox, supra. Although a probate court is without jurisdiction to grant equitable relief, it may apply equity doctrines in cases properly before it. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976); McDermott v. McAdams, 268 Ark. 1031, 598 S.W.2d 427 (Ark. App. 1980). The Supreme Court’s opinion in Standridge, supra, is not controlling in the case at bar because, in Standridge, no issue of estoppel was present: both parties in that case were aware that their marital status was questionable, to the extent that they made several visits to Oklahoma in a futile attempt to create a valid common-law marriage. In contrast, the appellant in the case at bar was unaware of any possible invalidity and, as we have noted, Bill Brown obtained her presence at the divorce hearing with the specific purpose of inducing her to marry him.

We hold that the estate and the heirs of Bill Brown are estopped from challenging the validity of Bill’s marriage to the appellant because they stand in privity to the decedent. Because Bill himself would be barred from challenging the validity of the marriage, his heirs and his estate are in no better legal position to challenge the validity of Bill’s marriage to the appellant. See Simmons v. Simmons, 203 Ark. 566, 158 S.W.2d 42 (1942) and Ripley v. Kinard, 155 Ark. 172, 244 S.W. 3 (1922).

We reverse and remand to the Craighead Probate Court to enter orders not inconsistent with this opinion.

Reversed and remanded.

Mayfield and Jennings, JJ., concur. Corbin, C.J., and Cracraft, J., dissent.