Opinion
Case Number: 117879
11-19-2020
IN THE MATTER OF THE ESTATE OF GEORGE THOMAS WHITEHOUSE, Deceased: KAREN BRIERTON, Appellant, v. TAWANNAH BURRIS, Appellee.
Mark B. Houts, HOUTS LAW, PLLC, Edmond, Oklahoma, for Appellant Michael W. Boutot, Tulsa, Oklahoma, for Appellee
APPEAL FROM THE DISTRICT COURT OF
PITTSBURG COUNTY, OKLAHOMA
HONORABLE TIM MILLS, TRIAL JUDGE
AFFIRMED
Mark B. Houts, HOUTS LAW, PLLC, Edmond, Oklahoma, for Appellant
Michael W. Boutot, Tulsa, Oklahoma, for Appellee
STACIE L. HIXON, JUDGE:
¶1 Karen Brierton (Brierton) appeals an order appointing Tawannah Burris (Burris) the personal administrator of the estate of Brierton's brother, George Thomas Whitehouse (Whitehouse), and finding a common law marriage existed between Whitehouse and Burris. On review, we affirm the trial court's May 11, 2019 Order of Appointment of Personal Representative and Finding of Common Law Marriage.
BACKGROUND
¶2 Whitehouse died in a motorcycle accident in August 2018. Burris contended she was Whitehouse's common law wife and petitioned for Letters of Administration. Whitehouse's sister, Brierton, objected to the appointment. The trial court conducted a non-jury trial on November 20 and December 31, 2018, to determine whether Burris was Whitehouse's common law spouse and entitled to appointment as his personal administrator.
¶3 Burris met and began dating Whitehouse in 2002. Whitehouse moved into Burris' home in 2003, and resided with Burris until his death, with the exception of a few months in 2009. In 2014, Burris' house burned. She testified that she and Whitehouse were reduced to living in a recreational vehicle while the house was rebuilt. Burris told Whitehouse she understood if he wanted to leave. She testified that Whitehouse told her that to do so, they would have to get divorced because they were married, in sickness and in health, for better or worse, richer or poorer, until death parted them.
¶4 Burris contended she and Whitehouse did things as a married couple from that day. She and Whitehouse filed joint tax returns as a married couple thereafter until his death. In 2015, Burris added Whitehouse as the beneficiary to her retirement account, identifying him as her spouse. Whitehouse signed the required form. Friends of Whitehouse testified they were aware he filed taxes jointly with Burris and was her retirement beneficiary.
¶5 Burris and Whitehouse maintained a joint checking account and owned multiple vehicles together. Their automobile insurance application, though signed only by Burris, identified them as husband and wife. Whitehouse was identified as Burris' husband on their cell phone plan. He was also listed as Burris' husband on a medical intake form when he took Burris to the emergency room in 2018. Burris paid for Whitehouse's funeral and laid him to rest in a joint burial plot that they will share.
¶6 Burris appeared to be a significant source of financial support for Whitehouse. Brierton acknowledged that her brother's estate was largely comprised of a potential claim arising from the motorcycle accident. She acknowledged her interest in contesting Burris' appointment was "possibly" the large lawsuit waiting after the appointment.
¶7 To contest Burris' status, Brierton presented evidence of Whitehouse's reputation as a "tomcat" or womanizer. He did not wear a wedding ring and his facebook status reflected he was single. Multiple women testified to a sexual relationship with Whitehouse and claimed that he told them Burris was only a roommate. These women, as well as Whitehouse's female friends and his siblings, contended he and Burris did not share a bedroom and did not have a marital or sexual relationship.
The trial court's order notes apparent credibility issues, or "questionable moral character" of these witnesses, potentially referring to prior convictions and/or outstanding warrants pending when these witnesses appeared to testify. However, the trial court did conclude that Whitehouse engaged in relations with other women during his relationship with Burris.
¶8 Burris contended she and Whitehouse resided together as husband and wife. Other witnesses admitted that Burris and Whitehouse sometimes slept in the same room. However, Burris was diagnosed with cancer in late 2014, and was still undergoing chemotherapy at the time of Whitehouse's death. Witnesses, including Burris, testified her illness dampened their intimacy, and that Whitehouse had mentioned he sought the company of other women as a result. Most of Whitehouse's paramours testified to being intimate with Whitehouse before 2014, or from 2016 through the time of his death. Burris presented evidence she had been intimate with Whitehouse up to a week before his death. While she denied knowing he was involved with any particular woman, her communications to Whitehouse suggested she was aware and frustrated by his activities.
The trial court admitted an unnotarized affidavit of a woman who claimed to have known Whitehouse for approximately thirteen years before his death and to have been intimate for nearly that time. The trial court indicated it would give that unsworn statement the weight it deserved.
¶9 Whitehouse's best friend and siblings also testified Burris was Whitehouse's roommate and/or that he did not consider Burris his wife. Brierton presented evidence that Burris did not identify herself as Whitehouse's wife on hospital paperwork after the accident, or on her application for his death certificate and acknowledged Whitehouse's sister was entitled to make Whitehouse's end of life decisions. Burris did not identify herself as Whitehouse's wife in his obituary, though she did identify herself as "of the home."
¶10 Burris testified she did not insert herself into Whitehouse's end of life decisions because she was not sure of her legal rights as common law spouse and claimed that a surgeon told her that Whitehouse' sister had the right to direct his care. She contended she told one nurse at the hospital that Whitehouse was her husband. Though Whitehouse's best friend denied the marital relationship, she admitted she also told a nurse at the hospital that Burris was Whitehouse's wife.
¶11 Burris presented testimony of witnesses indicating that Whitehouse and Burris acted like a couple. Whitehouse's cousin also testified she had learned from Whitehouse that he had become Burris' retirement beneficiary and that Whitehouse had joked in relation that Burris would have to divorce him to keep him from that money. Burris' cousin testified she had introduced Whitehouse as Burris' husband at a family gathering to no objection, and considered them husband and wife.
¶12 Weighing conflicting evidence of the relationship between Burris and Whitehouse, the trial court found Burris proved by clear and convincing evidence that she was Whitehouse's common law wife. The court determined Burris had demonstrated an actual agreement to be husband and wife, that the relationship was permanent, and that Whitehouse and Burris cohabitated as husband and wife from 2014 until his death. The trial court found it undisputed that Whitehouse was not in an exclusive relationship with Burris, but declined to find that his promiscuity cancelled a common law marriage. The trial court noted that it was arguable that Burris and Whitehouse did not hold themselves out as married "in such a manner that was readily discernible to the public" and that Whitehouse was "downright deceptive to virtually everyone" about his marriage. However, the trial court ultimately determined that there was ample credible testimony that Burris and Whitehouse held themselves out as husband and wife to friends and in public to support its finding of common law marriage.
¶13 By Order of March 11, 2018, the court found Burris was Whitehouse's wife and sole heir and appointed her administrator of his estate.
¶14 Brierton appeals.
STANDARD OF REVIEW
¶15 "On appellate review, a trial court's determination of the existence of a common law marriage will not be disturbed if it is not clearly against the weight of evidence." Standefer v. Standefer, 2001 OK 37, ¶ 11, 26 P.3d 104 (quoting Mueggenborg v. Walling, 1992 OK 121, ¶ 5, 836 P.2d 112). "Because the trial court is in the best positon to evaluate the demeanor of the witnesses and to gauge the credibility of the evidence, we will defer to the trial court as to the conclusions it reaches concerning those witnesses and that evidence." Stephens Production Co., a division of SF Holding Corp. v. Larsen, 2017 OK 36, ¶ 12, 394 P.3d 1262 (citing Mueggenborg, 1992 OK 121, ¶ 7).
ANALYSIS
¶16 Brierton contends the trial court's findings of fact negate a finding of common law marriage because the trial court did not find evidence of all five elements she contends must be established to support common law marriage. Brierton also contends the trial court erred by failing to hold Burris was estopped from claiming common law marriage, and that the Oklahoma Legislature has previously abrogated common law marriage.
Burris asserts that Brierton waived her estoppel argument by omitting it from her Petition in Error, though that argument was raised and considered by the trial court. Brierton's Petition in Error is deemed amended to include propositions in the Brief in Chief. See Supreme Court Rule 1.26(b).
Brierton also proposes that common law marriage is disfavored in Oklahoma, citing only case law from other jurisdictions and Oklahoma decisions affirming findings that various parties did not prove common law marriage under their unique facts. Brierton also contends that Maxfield v. Maxfield, 1953 OK 390, 258 P.2d 915, demonstrates that Oklahoma courts are less inclined to find common law marriage after one party is deceased, based solely on a remark in that case that its most recent cases had concerned matters where one party was deceased. Though it may be more difficult for the movant to show common law marriage by clear and convincing evidence after the other party is deceased, Maxfield pronounces no rule of "disfavor." Brierton suggests the trial court's ruling should be viewed against this backdrop of disfavor, but identifies no particular error to which this proposition is addressed. We decline to address it further and will apply well-established Oklahoma law.
1. Evidence of common law marriage
a. Applicable law
¶17 "A common law marriage is formed when 'the minds of the parties meet in consent at the same time.'" Standefer, 2001 OK 37, at ¶ 11 (quoting Reaves v. Reaves, 1905 OK 32, 82 P. 490). Earlier cases emphasized specific elements tending to prove the existence of common law marriage. These elements are: (1) an actual and mutual agreement between the spouses to be husband and wife; (2) a permanent relationship; (3) an exclusive relationship; (4) proved by cohabitation as man and wife; (5) and the parties to the marriage must hold themselves out publicly as husband and wife. Estate of Stinchcomb, 1983 OK 120, ¶ 10, 674 P.2d 26.
¶18 Standefer clarified that elements two through five are evidence of the required mutual agreement or consent to enter into the marital relationship. The Court explained that, "[s]ome evidence of consent to enter into a common law marriage are cohabitation, actions consistent with the relationship of spouses, recognition by the community of the marital relationship, and declarations by the parties." Id. The party seeking to establish a common-law spousal relationship has the burden to demonstrate the existence of the marriage by clear and convincing evidence. Standefer, 2001 OK 37, ¶ 11.
¶19 Contrary to Standefer, Brierton contends that elements two through five are not merely evidence of the existence of a mutual agreement to marry. She asserts that Burris was required to show all five elements and that a failure of proof on any element was fatal to Burris' claim. Brierton concludes the trial court found only the elements of actual agreement, a permanent relationship and cohabitation, and that its finding is therefore unsupported by evidence. While this assertion is not wholly consistent with the trial court's actual findings of fact, it is also contrary to current Oklahoma law.
¶20 Brierton claims that after Standefer, Oklahoma courts have "reaffirmed" the five-part test, citing State ex rel. Oklahoma Bar Ass'n v. Casey, 2012 OK 93, 295 P.3d 1096, and Matter of Estate of Brown, 2016 OK 112, 384 P.3d 496. Casey was a disciplinary proceeding considering whether counsel breached ethical duties during an action concerning common law marriage. Casey referenced the five elements reflecting a common law marriage but did not determine whether a common law marriage was formed in that case, or how the test should be applied. Id. at ¶ 13 (quoting Vann v. Vann, 1939 OK 495, ¶ 21, 96 P.2d 76).
¶21 Meanwhile, Casey also reminded that "Oklahoma has long recognized that such an agreement [to be married] may arise through the parties' declarations, admissions, or conduct; but no particular form of expression is required . . . and thus, the mutual agreement may be express or implied." Id. at ¶ 13 (citing Reaves, 1905 OK 32, ¶ 8; In re Graham's Estate, 1934 OK 674, 37 P.2d 964). Brierton's rigid application of the evidentiary elements is not supported by Casey's acknowledgment that there is no one form of expression required to establish a mutual agreement to be married. Brierton's argument also ignores the difference between the fact of the marriage and the proof required to establish it.
¶22 Similar to Casey, Estate of Brown, 2016 OK 112, cites the elements in a footnote without application. We decline to hold that either Casey or Estate of Brown overruled Standefer. Neither actually applied the purported five-part test. They cannot be read to signal a departure from Standefer's recognition that common law marriage is created by an actual and mutual agreement to be husband and wife, with the remaining elements considered as evidence of that agreement.
Estate of Brown, 2016 OK 112,concerned a petition by a decedent's first wife to revoke letters of administration assigned to decedent's common law second wife. The Court considered whether the first wife was estopped to claim she was married to decedent, despite never formally divorcing (though she remarried another man). The Court did not review the trial court's findings of a common law marriage. Aside from the Oklahoma Supreme Court cases of Casey and Brown, Brierton also relies on Oklahoma Dept. of Mental Health and Substance Abuse v. Pierce, 2012 OK CIV APP 73, 283 P.3d 894 in support of her position. Pierce mentions the five elements, but also cites and follows Standefer. Brierton's reliance on Ortiz v. Cooper Tire & Rubber Co., 2015 WL 1498713 (W.D. Okla. Mar. 31, 2015), and the Attorney General's opinion in Question Submitted by: The Honorable Larry E. Adair, Speaker, District 86, 2004 OK AG 10, ¶ 3, is likewise unpersuasive. Ortiz cites Standefer and does not examine the application of evidence of common law marriage, but denied summary judgment on a question of fact. The Attorney General opinion does not address proof of a common law marriage, but considered a separate issue of who may marry under Oklahoma law.
¶23 Having addressed the applicable law, we address the trial court's ruling. The trial court's conclusions of law are somewhat unclear. The court stated that all five elements must be proven independently, but that it would give greater weight to element one (an actual and mutual agreement); hence, Brierton's contention that the trial court's ruling was unsupported by evidence if all elements were not met.
¶24 However, the trial court also appeared to acknowledge that elements two through five were to be considered as evidence of the required actual and mutual agreement. Though the court's language was conflicting and did not correctly describe applicable law, its application of the evidence seems to follow Standefer. Even if this were not the case, "[w]e will not reverse the trial court when it 'reaches the correct result but for the wrong reason.'" Save the Illinois River, Inc. v. State ex rel. Okla. State Election Bd., 2016 OK 86, ¶ 9, 378 P.3d 1220 (citation omitted). We next consider whether the trial court's ruling is not clearly against the weight of evidence under applicable law.
b. The trial court's findings of fact
¶25 The crux of Brierton's argument is not that there was no evidence of elements within the proposed five-part test, but that Burris failed to establish two elements - that Burris and Whitehouse held themselves out publicly as married, and exclusivity. Because these factors are evidence to be weighed in considering whether an actual and mutual agreement to be husband and wife was established, lack of these elements does not itself establish reversible error. To the extent Brierton argues that the lack of these elements renders the trial court's findings contrary to the weight of evidence, we disagree.
¶26 The trial court did not find that Burris failed to establish she and Whitehouse held themselves out as being married. The trial court found that the evidence was conflicting, and that Whitehouse did not disclose his marriage to his sexual partners or his siblings (seemingly to foster his promiscuity). However, as the trial court found, other evidence showed Burris and Whitehouse held themselves out not only to certain family and friends as being married, but to the Internal Revenue Service, their auto insurer, Burris' medical providers, and to the administrator of her retirement account. Though some witnesses testified they did not refer to one another as husband and wife, they also testified that they appeared to live as a married couple. See e.g. Maxfield, 1953 OK 390, ¶ 25 ("[W]e are cited to no case requiring the parties to make a formal acknowledgment of their agreement.")
Brierton also misstates this element, contending that a showing of cohabitation as husband and wife and holding one's self out in the community as being husband and wife "require the parties have a reputation in the community for being married to each other," relying on Richard v. Richard, 1935 OK 436, 45 P.2d 101 and In re Miller's Estate, 1938 OK 289, 78 P.2d 819. The case law on which Brierton relies concerns the admissibility of reputation evidence, along with cohabitation, as circumstantial evidence of common law marriage, i.e., whether others in the community viewed or believed them to be married. It does not establish "reputation" as a required element, though such evidence may be relevant to establishing that the parties held themselves out as husband and wife publicly, just as direct evidence that Whitehouse and Burris held themselves out publicly was relevant to that consideration.
Brierton also states that "[t]he Oklahoma Supreme Court has held that tax returns alone will not prove a common-law marriage," citing Casey, 2012 OK 93, ¶ 17. Brief, p. 18. This statement misstates Casey, which contains no holding as to the weight joint tax returns bear in establishing common law marriage. That case does not review a finding of common law marriage, but concerned whether counsel exposed their client to unnecessary legal consequences in a declaratory judgment action through their admissions of filing joint tax returns, while disclaiming an intent to be married.
¶27 On the issue of a marital relationship, permanent and exclusive of all others, the trial court found that Whitehouse had intimate relationships with other women while in a relationship with Burris. Brierton presents no authority that Whitehouse's sexual promiscuity precluded common law marriage as a matter of law. While we find no Oklahoma Supreme Court authority directly on point, we are inclined to agree with the trial court that infidelity or an extra-marital affair does not cancel a marriage. See e.g., Adams v. Boan, 559 So.2d 1084, 1987 (Ala. 1990)("Once married, by common law or by ceremony, the spouses are married. There is no such thing as being a 'little bit' married; and once married, one spouse's liaison amoureuse does not end the marital status. . . .")
Brierton cites Sanders v. Sanders, 1997 OK CIV APP 67, 948 P.2d 719, to suggest that the sole reason the Court affirmed a determination that movant and decedent were not married at common law was because movant had engaged in a sexual relationship with another man. However, in Sanders, which pre-dated Standefer, the Court considered a host of conflicting evidence, including an admission by movant to counsel that she was not the decedent's wife.
¶28 Though Whitehouse's promiscuity was evidence disputing a mutual agreement to be husband and wife, Burris presented evidence at trial that supported that agreement. The trial court is in the best position to weigh the evidence and credibility of the parties. The court's finding of common law marriage is not clearly against the weight of the evidence, even if others might reach a different conclusion from the same set of facts.
2. Estoppel
¶29 Brierton contends that Burris is estopped from claiming common law marriage to Whitehouse because she did not assert herself as his wife on several occasions, largely associated with Whitehouse's end-of-life decisions, citing Matter of Estate of Brown, 2016 OK 112. In that case, the Court affirmed the holding that a decedent's first wife was estopped from claiming they remained married after his death. Despite the lack of a formal divorce proceeding, the first wife had married another man and decedent had taken a common law wife, without her apparent objection. The first wife's conduct prevented her from claiming she remained married, under the principal that "if you do not speak when you ought to speak, you shall not speak when you want to speak." Id. at ¶ 11. See also In re Estate of Allen, 1987 OK 45, 738 P.2d 142 (wife who was not legally divorced from decedent was estopped from claiming she remained married and had rights to former husband's estate, after entering into common law marriage with another).
Brierton also cites Sanders, 1997 OK CIV APP 67, 948 P.2d 719, in support of her estoppel argument. The issue on review in Sanders was whether the trial court's finding that a woman was not the decedent's common law wife was against the weight of the evidence and does not address estoppel.
¶30 "To constitute estoppel by silence requires not only opportunity to speak, but also an obligation to speak." Sautbine v. Keller, 1966 OK 209, ¶ 17, 423 P.2d 447. "In order for the silence of a party to constitute an estoppel against him, it must have occurred under such circumstances as to have made it his imperative duty to speak, and the party in whose favor the estoppel is invoked must have been misled into doing that which he would not have done but for such silence." Heckman v. Davis, 1916 OK 243, ¶ 8, 155 P. 1170. Brierton bore the burden of demonstrating estoppel. Sullivan v. Buckthorn Ranch Partnership, 2005 OK 41, ¶ 30, 119 P.3d 192.
¶31 The question of whether an estoppel exists is one of fact or a mixed question of law and fact. Oxley v. General Atlantic Resources, Inc., 1997 OK 46, ¶ 20, 936 P.2d 943. We will not reverse the trial court's findings unless clearly against the weight of the evidence.
¶32 While instances where Burris failed to identify herself as Whitehouse's wife are relevant to establishing or refuting a common law marriage, Brierton presented no evidence at trial of any instance in which she was misled to her detriment by Burris' silence, to support such an argument. Meanwhile, Burris testified that she was unsure of her rights as a common law spouse with regard to Whitehouse's medical care, as relevant to whether she avoided any asserted duty or imperative to speak. While the trial court did not expressly address this issue, the court's decision "is presumptively deemed to include a finding of every fact necessary to support it." Willis v. Sequoyah House, Inc., 2008 OK 87, ¶ 15, 194 P.3d 1285, n.18. The trial court's apparent determination that estoppel did not apply is not clearly against the weight of evidence.
3. Abrogation by statute
¶33 Brierton contends that the Oklahoma Legislature intended to abrogate common law marriage through statutes concerning marriage licenses, now codified at 43 O.S. 2011, §§ 4 and 5. Brierton acknowledges her proposition is contrary to a century of Oklahoma Supreme Court jurisprudence, but nevertheless claims that the Legislature enacted sections 4 and 5 in response to Reaves, 1905 OK 32, and intended therein to eliminate common law marriage.
¶34 Reaves, 1905 OK 32, considered whether a common law marriage was valid despite a prior territorial law requiring a marriage license and certain requirements regarding the ceremony. The Court found the marriage valid, noting that "[s]tatutes regulating marriage are usually directory merely, and when such statutes do not expressly prohibit or forbid other forms of marriage, a common-law marriage. . . is valid." Id. (syllabus 3).
¶35 Title 43 O.S. 2011, § 4 provides that "[n]o person shall enter into or contract the marriage relation, nor shall any person perform or solemnize the ceremony of any marriage in this state without a license. . . ." Section 5 sets forth the required contents of an application for marriage license, establishes the required fee and issuance of license once these requirements are satisfied, and provides that "the provisions hereof are mandatory and not directory except under the circumstances set out in the provisions of Section 3 of this title." Id. § 5(E). Brierton contends the language of section 5(E) is a direct response to Reaves, and was intended to abrogate common law marriage.
Section 3 addresses who may marry, and requirements pertaining to marriage between those under 18.
¶36 Brierton's argument ignores basic but pertinent information. Reaves was decided in 1905. While the Oklahoma Legislature enacted statutes pertaining to marriage licenses in 1910, the "mandatory" language on which Brierton relies was first included in 1959, fifty-four years after Reaves was issued. See 43 O.S. Supp. 1959, § 5. Section 5(E) was not enacted in response to Reaves. Further, the "mandatory" language is included in section 5 only, concerning the marriage license application. Section 4, which requires the license, contains no such language. Neither section contains the express language to forbid common law marriage required by Reaves.
¶37 Additionally, the Oklahoma Supreme Court rejected a similar argument after briefing was completed in this appeal. In Erlandson v. Coppedge, 2019 OK 66, 451 P.3d 909 (Mem), the Court assumed original jurisdiction and issued a writ of mandamus to the trial court to proceed on a petition for dissolution of common law marriage. The trial court dismissed the petition, erroneously finding section 5(E) was added in 1999 to abrogate common law marriage. The Court noted that the language in section 5(E) had been in the statute since 1959, and that the Court had continually recognized common law marriage since that time. In its order, the Court again recognized that "Oklahoma recognizes two forms of marriage: ceremonial and common law," stating that "[f]or the Legislature to abolish common law marriage, it must be explicit." Id. Brierton's argument supplies no basis to reverse the trial court's order.
In Erlandson, the trial court's determination that common law marriage had been abrogated was based on an erroneous determination that section 5(E) had been added to the statute in 1999.
CONCLUSION
¶38 The trial court's determination weighed the requisite elements as evidence of whether Burris and Whitehouse reached an actual and mutual agreement to be husband and wife, in accordance with Oklahoma law. Though reasonable minds could differ, the trial court's determination as the finder of fact that Burris was Whitehouse's common law wife is not clearly against the weight of evidence. Brierton's estoppel argument is unsupported by evidence and her argument that common law marriage has been abrogated by statute is contrary to law. We affirm the trial court's Order of Appointment of Personal Representative and Finding of Common Law Marriage of March 11, 2019.
¶39 AFFIRMED.
WISEMAN, C.J., and THORNBRUGH, P.J., concur.