Opinion
23058.
ARGUED JULY 13, 1965.
DECIDED SEPTEMBER 13, 1965.
Habeas corpus; custody of child. DeKalb Superior Court. Before Judge Hubert.
Richardson Chenggis, R. Bruce Richardson, for plaintiffs in error.
In a habeas corpus action, the trial judge erred in granting custody of a minor child to the applicant, the putative father, who had no lawful right to such child.
ARGUED JULY 13, 1965 — DECIDED SEPTEMBER 13, 1965.
Everett Otis Gallion brought his application for writ of habeas corpus in DeKalb Superior Court seeking custody of a named child as against Mr. and Mrs. E. Glenn Toole and alleging that by virtue of a common law marriage he was the lawful father of the child the defendants had in their possession; that the mother of the child had informed the applicant she "was going to sign the papers to enable the said defendants to adopt the said child"; that he had not consented to the adoption of the child and, since the mother had abandoned it, he was entitled to custody.
After a hearing at which evidence was introduced by both sides the trial judge awarded custody of the child to the applicant. The defendants except and assign error on that final judgment.
The pertinent evidence adduced upon the hearing was as follows. On direct examination the applicant testified that he and the mother Gwendolyn Jean Shabel Carter (hereinafter referred to as the mother) entered into an agreement on October 14, 1963, to live together as man and wife and that they did so pursuant to that agreement. He also stated he knew the mother had been married but did not know the marriage was undissolved until after the child was conceived; that he had previously been married but had separated from his wife in 1957 and such marriage had been annulled in Maryland. However, on cross examination the applicant gave the following account concerning the agreement to marry of October 14, 1963: that he and the mother were living separately and she was "curb-hopping" at a beer joint and "we started talking and she said she was fed up living with her cousin and I said, `Would you care for us to get an apartment?' So we went to see the apartment." Thus, he asked her to move in with him and she accepted his "proposal." When asked if there was a proposal of a marriage relationship, he responded: "Not at that time, no." In reply to a query as to whether it was an agreement for the sake of companionship, he stated: "That's the way it started, yes." He testified that they both knew he was not married to her; that they discussed marriage "about the way everybody does."
He also testified regarding his prior marriage that he did not know "for sure" or definitely whether the marriage was still valid; that he had been told it was annulled; that he did know his former wife was remarried.
The mother denied there was any present intent on their part to marry and stated that they discussed marriage in the future after she got a divorce. She and the defendants testified that she gave her written consent for the defendants to have custody of the child.
The only other evidence adduced relative to the purported marriage was a letter from the mother to the applicant's attorney which stated: "I am writing to say that Everett Gallion and I lived together as man and wife since December 15, 1963. We paid the rent on the place October 13, 1963. When we moved in we had the intention of getting married. I had planned to get my divorce and get married as soon as we could. I am in no way ashamed of living with him without being married." The mother testified she wrote such letter at the applicant's behest and solely to effect a reconciliation.
The record shows that the defendants had made application to adopt the child and the mother had given her consent or release of custody to them. The applicant predicates his right to custody on the allegation that he is the lawful father of the child, in recognition of the law of this State that: "The mother of an illegitimate child shall be entitled to the possession of the child, unless the father shall legitimate him as before provided. Being the only recognized parent, she may exercise all parental power." Code § 74-203.
Since it plainly appears from the record that the mother had a prior undissolved marriage which existed during the relationship between her and the applicant and that the applicant was not certain his prior marriage had been annulled, it is evident that no valid common law marriage could exist. Williams v. Lane, 193 Ga. 306, 309 (1) ( 18 S.E.2d 481); Gearllach v. Odom, 200 Ga. 350, 351 ( 37 S.E.2d 184); Code §§ 53-101 and 53-102. However, when the legitimacy of a child is involved, there is authority by a split decision of this court, Campbell v. Allen, 208 Ga. 274 ( 66 S.E.2d 226), that a bigamous common-law marriage is within the purview of Code § 53-104 which provides: "Marriages of persons unable to contract . . . shall be void. The issue of such marriages, before they are annulled and declared void by a competent court, shall be legitimate." Thus, the sole question for our consideration is whether there was a valid attempt to enter into a contractual agreement for a common law marriage.
In Peacock v. Peacock, 196 Ga. 441, 451 ( 26 S.E.2d 608), this court quoted with approval 38 CJ 1319, § 94, stating that: "With regard to common-law marriages effected by the express agreement of the parties, a distinction is made between contracts per verba de praesenti, that is, where the parties take each other in the present tense, implying that the marital relation is constituted immediately, and contracts per verba de futuro, which imply no more than that the parties will marry each other at a later time. Contracts of the former sort, when duly acted upon, create a valid marriage, while words evidencing only the intention to be married in futuro are ineffectual even where followed by cohabitation. . . Words showing only an intention to contract marriage in futuro will be ineffectual to establish the requisite consent in any event; and unless they are followed by a new promise express or implied in praesenti, the copulation of the parties is meretricious." Moreover, "if a cohabitation between a man and a woman is shown to have been illicit in its inception, in the absence of proof to the contrary the illicit relation will be presumed to have continued throughout the period of cohabitation. Such presumption may be overcome by direct or circumstantial evidence affirmatively showing that, pending the illicit relation, the parties entered into an agreement to become husband and wife, and thereafter continued the cohabitation in the new relation. The burden of proof is upon the party asserting the agreement." Foster v. Foster, 178 Ga. 791 (3) ( 174 S.E. 532).
When reviewing evidence, this court has repeatedly held: "The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal." Douglas v. Sumner, 213 Ga. 82, 85 (3) ( 97 S.E.2d 122); Bullard v. Bullard, 214 Ga. 122, 124 (2) ( 103 S.E.2d 570). Applying these rules, we consider the present record. Here the evidence given by the applicant showed that there was no present intent to marry when the mother and he commenced to live together; furthermore, there is no showing that any such agreement was ever entered into. Even the mother's letter, although stating that they lived together as man and wife, showed that they intended to marry "as soon as [they] could" and she lived with him "without being married." Construing the evidence as a whole, it was shown, conclusively and without material contradiction, that the relation between the putative father and the mother of the child was an arrangement of convenience which constituted not an attempted marriage, but no more than a meretricious relationship. Hence, under the law, the applicant had no right to custody of the child.
Judgment reversed. All the Justices concur.