In Re Marriage of Mosher

JUSTICE BARRY,

dissenting:

The majority have failed to consider the impact of this decision upon the children of the parties and have misconstrued the law of Iowa; therefore, I dissent.

It should be noted that both parties agree that they have cohabited and lived together as a family since 1982. The evidence is also undisputed that Alphonso and Lori were regarded as married by everyone they had dealings with in Iowa and thereafter, and that neither party ever denied a marriage relationship. According to the wife of a colleague of Alphonso, he introduced Lori as his wife at a party in the Vera apartment in Iowa. Lori corroborated that testimony. Lori also testified that Alphonso never corrected anyone who assumed they were married, and that his mother, who lived with them, always referred to her as his wife. Their children used the last name “Vera.”

Iowa courts have refused to accept a husband’s statements at trial that he did not intend to enter into a marital relationship as determinative of whether a common law marriage existed and instead the courts examine the circumstantial evidence to determine whether the parties intended to sustain a relationship of husband and wife by mutual consent. (E.g., In re Marriage of Winegard (Iowa 1979), 278 N.W.2d 505; Gammelgaard v. Gammelgaard (1956), 247 Iowa 979, 77 N.W.2d 479; In re Marriage of Gebhardt (Iowa App. 1988), 426 N.W.2d 651.) In those cases, the courts considered significant the use of the man’s surname by the woman with his repeated acquiescence, the man’s payment of family expenses, joint vacations, newspaper publications describing the couple as husband and wife, insurance contracts listing the woman as wife, and the opinions of other persons in the community that the parties were married.

In the Gebhardt case, Iowa law was summarized as follows:

“A person may be entitled to marital rights if his or her intention is to be married, even though the other person’s intention is not the same, provided they cohabit and provided the conduct of one person justifies the other to believe he or she intended to be married. In re Marriage of Winegard, 257 N.W.2d 609, 616 (Iowa 1977) (citing McFarland v. McFarland, 51 Iowa 565, 570, 2 N.W. 269, 273-74 (1879)). Continuous cohabitation and the declaration of holding out to the public that the parties are husband and wife constitutes circumstantial evidence which tends to create a fair presumption that a common-law marital relationship exists. Id. at 617. Introduction of one party by the other as a wife or husband is in and of itself acknowledgment of marital relation. In re Fisher’s Estate, 176 N.W.2d 801, 807 (Iowa 1970).” 426 N.W.2d at 652.

Although the evidence in the case before us is disputed as to whether Alphonso introduced Lori as his wife, it is not disputed that he published newspaper announcements relating to his practice in which Lori was described as his wife. Furthermore, he admitted that he never corrected anyone who assumed that they were married.

According to the Gebhardt analysis, the issue is not whether Alphonso ever intended to formalize a marriage agreement, but rather whether the circumstantial evidence established the existence of a common law marital relationship. Assuming, as we must, that Alphonso was correct when he testified that he refused to recite marriage vows in 1986, nonetheless Alphonso’s admitted conduct in holding out Lori as his wife for social, professional, and financial purposes overwhelmingly established a valid common law marriage under Iowa law. In my view, Iowa law compels a finding that Alphonso’s conduct during the time the parties lived together in Iowa and elsewhere conclusively established the parties’ mutual intention to enter into a husband and wife relationship, regardless of any formal agreement or ceremony.

Furthermore, we cannot overlook the fact that these parties have two children born to them. By recognizing a common law marriage here, the children are legitimized. (See Jambrone v. David (1959), 16 Ill. 2d 32, 156 N.E.2d 569.) Conferring legitimacy upon these children is in harmony with the public policy of Illinois. Peirce v. Peirce (1942), 379 Ill. 185, 39 N.E.2d 990.

The majority rely upon Newton v. Lehman (1969), 105 Ill. App. 2d 442, 244 N.E.2d 830, in which the court declined to recognize a common law marriage. I find the facts of that case quite different than the facts before us here. First and foremost is the fact that the parties had no children, and second, Newton had married another woman after ceasing to cohabit with Lehman. Thus, recognition of a common law marriage would likely have resulted in bigamy charges. Also, there was no evidence that the parties ever introduced themselves as husband and wife or that they were so regarded by persons in the community where they had resided. Other than certain business transactions, the evidence did not disclose conduct by either party that would constitute a holding out to the public that they were husband and wife. The circumstances in the instant case differ greatly so that Newton v. Lehman should be distinguished, not followed.

As I have indicated, I am persuaded that the law of Iowa compels recognition of a common law marriage here, and the public policy of Illinois favoring legitimacy of children would be better served by a reversal of the judgment of the trial court.