COURT OF APPEALS DECISION DATED AND RELEASED July 6, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1247
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
LORENZA D. THOMPSON,
Petitioner-Appellant,
v.
LENNORE BIGGERS
THOMPSON,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Dane County:
DANIEL R. MOESER, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER CURIAM. Lorenza D. Thompson appeals from an order
by which the circuit court denied his action to affirm his marriage with
Lennore Biggers Thompson. Lorenza
alleges that the trial court failed to give full faith and credit to Georgia
law, and that under Georgia law, he and Lennore are common-law husband and wife. For the reasons set forth below, we affirm.
BACKGROUND
During
the mid 1980's, Lorenza and Lennore cohabited in Georgia. During this time, it is undisputed that
Lennore did not object when Lorenza introduced her to people as his wife. In addition, Lennore signed leases and other
legal papers as Lorenza's wife, both in Georgia, and in other states where the
couple moved later. Citing Georgia case
law, Lorenza argues these circumstances suffice to create a common-law
marriage.
Lennore testified that
she signed papers and accepted the appellation of "wife" under
duress. She testified that she did not
consider herself married. She
introduced evidence that Lorenza also knew that they were not married. Specifically, in a letter to Lennore's
mother, Lorenza wrote:
As to
marriage, I have asked her to marry me many times but they were wrong times,
because she said no. When she wanted me
to propose I didn't know and failed to ask.
Based
on Lennore's testimony and especially upon Lorenza's letter, the circuit court
determined that Lorenza and Lennore were not married. It therefore refused to affirm the marriage.
STANDARD OF REVIEW
Where
there is a mixed question of law and fact, we determine whether the factual
finding is clearly erroneous, and whether the legal holding is correct. Compare
Department of Revenue v. Exxon 90 Wis.2d 700, 713, 281 N.W.2d 94,
101 (1979), aff'd 447 U.S. 207 (1980) (reviewing court examines factual
and legal holdings separately) with § 805.17(2), Stats. (findings of fact shall not be
set aside unless clearly erroneous) and Ball v. District No. 4 Area Bd.,
117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984) (appellate court determines
questions of law without deference to the trial court). We address fact and law in turn.
ANALYSIS
Fact
The circuit court found
as a matter of fact that Lennore was unwilling to be married, and that Lorenza
did not think the parties were married.
This finding is not "clearly erroneous." Rather, the record supports this finding
(Lennore's testimony and Lorenza's letter).
Law
Lorenza
claims that Brown v. State, 208 Ga. 304, 66 S.E.2d 745 (1951),
stands for the proposition that cohabitation and a subsequent holding out as
husband and wife suffice to create a common-law marriage in Georgia. However, Brown is
inapposite. In Brown, the
issue was whether a common-law wife could testify against her common-law
husband. In holding the wife not
competent to testify, the court determined that the status of common-law
marriage could be deduced from a cohabiting couple holding itself out as
married, and living together for some time.
Brown is distinguishable because neither party to the
marriage sought to challenge it. Brown
does not control where, as here, one of the parties to the alleged marriage
claims that she did not intend to become married.
Similarly misplaced is
Lorenza's reliance upon Fanning v. State, 46 Ga. App. 716, 169
S.E. 60 (1933). Lorenza argues that
under Fanning, the burden of disproving the married state is upon
the person challenging the validity of the marriage. He claims that the burden was therefore on Lennore to show they
were not married, a burden he claims Lennore failed to discharge. Lorenza misunderstands the
"burden" involved.
In Fanning,
the issue was whether Eddie Fanning had committed bigamy. In holding that he had, the court noted that
the burden is on one who seeks to challenge the validity of the marriage. However, this remark was made in the context
of a larger statement that marriages between persons unable or unwilling to contract
are void as are marriages procured by fraud.
Id., 169 S.E. at 62.
Therefore, held the court, in order to show unwillingness to contract,
the party opposing the marriage had to introduce proof to overcome a prima
facie presumption of regularity. Lennore's testimony of unwillingness, coupled with Lorenza's
admission by letter that there was no marriage, certainly overcome any
presumption. Having overcome the
presumption, Lennore discharged any "burden" under Georgia law.
By
the Court.—Order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.