DOWELL v. WELCH

DOWELL v. WELCH
1978 OK CIV APP 1
574 P.2d 1089
Case Number: 50446
Decided: 01/03/1978

 
IN THE MATTER OF THE ESTATE OF CHESTER A. DOWELL, DECEASED.
CHESTER RALPH DOWELL, APPELLANT,
v.
ORPHA WELCH, APPELLEE.

Appeal from the District Court of Latimer County; Bill Welch, Trial Judge.

¶0 Petition by decedent's son asking that letters of administration be issued to petitioner's mother, a former wife of deceased. An objection was filed by one claiming to be the decedent's common-law spouse. Trial court found a common-law marriage did exist and appointed surviving spouse administratrix. Son's motion for new trial was overruled and he appeals.

AFFIRMED.

Ray A. Johnston, Wilburton, and James E. Gotcher, McAlester, for appellant.
William G. Jones, Wilburton, for appellee.

BRIGHTMIRE, Presiding Judge.

¶1 Was appellee, Orpha Welch, the paramour or common-law wife of the late Chester A. Dowell when he died April 8, 1976? Decedent's son, Chester Ralph Dowell, says she was no more than an intimate friend. The court who heard the evidence found, however, that she was the senior Dowell's surviving spouse. We affirm.

I

¶2 Orpha's husband of several years died on June 15, 1975. Two months later she started "dating" Chester A. Dowell and not long thereafter invited him to share her house trailer. Chester A. obtained a divorce from his then wife, Norine, on September 15, 1975,

¶3 Appellant, Chester Ralph, on the other hand adduced evidence of facts and circumstances which tended to be inconsistent with such a marriage. The evidentiary conflict, as we mentioned earlier, was resolved in Orpha's favor precipitating this appeal.

II

¶4 Appellant's sole argument is that the nuptial finding of the trial court is "against the weight of the evidence" because (1) the impromptu marriage allegedly took place at a time when Chester A. had no capacity to enter into one, and (2) the testimony of Orpha and her witnesses not only contains inconsistencies but is completely neutralized by evidence of things Chester A. did during the last six months of his life which are incompatible with matrimony.

¶5 While there are certain facts and circumstances which raise in our minds doubts about the correctness of the trial court's finding - doubts which often cloud the legal sky when the lips of one party to such an informal union are sealed by death - we cannot say it is clearly against the weight of the evidence. Appellee presented evidence to support a finding that these essential elements of a commonlaw marriage existed: (1) an agreement between the parties to marry, and (2) consummation of that agreement by cohabitation as husband and wife. Bothwell v. Way, 44 Okl. 555, 145 P. 350 (1914). Appellee testified that such an agreement was entered into between her and Chester A. on October 14, 1975, and that they then began cohabiting as if they were a lawfully wedded couple. She adduced evidence corroborating these facts to the effect that she and Chester A. publicly held themselves out as husband and wife and that most of the people in Orpha's hometown, where they lived, thought they were married.

III

¶6 The remaining question concerns the effect of Chester A.'s impaired right to remarry on October 14, 1975. Notwithstanding the fact that, for the purpose of remarriage, statutory law deems a divorced couple married for six months following the granting of a divorce - it characterizes a remarriage during such period as "bigamous" and any connubial "cohabitation" as "adultery," (1969 statutory amendment)

¶7 Affirmed.

¶8 BACON and NEPTUNE, JJ., concur.

Footnotes:

1 Norine evidently was not Chester A.'s first wife because his son, Chester Ralph, a chief petty officer in the U.S. Navy stationed in Hawaii, asked in his petition that his mother, Mary Barrick, be named administratrix.

2 12 O.S. 1971 § 1280 .