Opinion
54859.
ARGUED NOVEMBER 3, 1977.
DECIDED NOVEMBER 17, 1977.
Year's support. Gwinnett Superior Court. Before Judge Pittard.
Greer Klosik, Robert H. McDonnell, for appellant.
G. Hughel Harrison, W. L. Maloney, for appellee.
Upon the death of one Frank Kelly the appellee Naomi Kelly, who was living with him at the time of his death, filed a petition for one year's support, claiming to be his widow by virtue of a common law marriage. The appellant Laura Kelly filed a caveat claiming that she was the widow by virtue of a ceremonial marriage entered into between the parties in March, 1926. A divorce action filed in 1933 was never completed. It appears that around the time of his death both litigants were having some contact with the deceased.
The trial court dismissed Laura Kelly's caveat on the ground that she had no standing to claim a year's support because "Laura Kelly had previously under date of October, 1921, entered into a marriage with Squire Jones and the marriage between Squire Jones and Laura Kelly had not been dissolved and the [only] proof before this Court is that Laura Kelly made only one telephone call and has only received information from a cousin that is strictly hearsay evidence as to the death of Squire Jones." From the judgment the caveator appeals.
ARGUED NOVEMBER 3, 1977 — DECIDED NOVEMBER 17, 1977.
"The present rule as to the presumption of validity of a second marriage was stated in Smith v. Smith, 230 Ga. 616, 618 ( 198 S.E.2d 307) (1973), where this court approved the ruling of the Court of Appeals in Zurich Ins. Co. v. Craft, 103 Ga. App. 889 (2) ( 120 S.E.2d 635) (1961), as follows: `Where a party to a ceremonial marriage has been previously married and the validity of the second marriage is challenged, a presumption arises that the second marriage is valid until evidence is adduced that the spouse of the first marriage is living, and only then does the Act of 1957 amending Code § 53-102 (Ga. L. 1957, p. 83), place the burden on the party contending that the second marriage is valid to go forward with the evidence and show that the first marriage was dissolved by divorce.'" Patrick v. simon, 237 Ga. 742 (3) ( 229 S.E.2d 746). The appellant was born around 1905 and married at the age of 15. The age of her first spouse, Squire Jones, is not given, but there is no indication in the record that he had been seen alive after her marriage to Kelly in 1926. Her testimony was that she had been informed of his death apparently around the time this marriage took place. In the absence of proof to the contrary, the second marriage being a ceremonial marriage must be presumed valid.
The trial court erred in not sustaining the caveat to the year's support petition.
Judgment reversed. Webb and Birdsong, JJ., concur.