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Simmons v. Simmons

Decided: June 2, 1955.

MARY SIMMONS, PLAINTIFF-APPELLANT,
v.
ARNETT SIMMONS, DEFENDANT-RESPONDENT



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Plaintiff appeals from a judgment of the Chancery Division dismissing with prejudice her action for separate maintenance because the proofs failed to establish that she ever entered into a ceremonial marriage with defendant, but rather showed she had previously contracted such a marriage with one Thompson so that she is not now and never was defendant's wife. The appendix is limited to a record of the pleadings; the testimony is not reproduced. However, in disposing of plaintiff's earlier application for alimony pendente lite , counsel fees, printing costs, etc., this court permitted the parties to submit a single copy of the transcript with their briefs.

The original complaint alleged that plaintiff was ceremonially married to defendant in Fort Pierce, Florida, on March 25, 1928; it set out a series of acts of extreme cruelty, charged abandonment and refusal and neglect to support, and demanded judgment granting support and maintenance. Defendant denied he had ever been married to plaintiff or that they had lived together, and alleged she had told him she was married to Thompson and had been abandoned by him. This answer was later amended to state that when defendant first met plaintiff she told him her name was Mary Garrett and that she was the wife of one Cleveland Garrett, whom she had deserted.

In the affidavit attached to her motion for alimony pendente lite plaintiff averred that she had ceremonially married Thompson in Monticello, Florida, early in 1915; that he had deserted her in the latter part of 1916 in Florida; that she had never again seen nor heard from him despite her efforts (including advertisements in the local Florida newspapers) and those of his parents and relatives to locate him; that she had explained all this to defendant prior to their marriage, and both of them had believed Thompson was dead.

Thereafter plaintiff filed an amended complaint for separate maintenance in two counts. The first was based on the ceremonial marriage to defendant, as set forth above. The

second was based on a common-law marriage; it alleged that at various times before March 25, 1928, at Fort Pierce, Florida, defendant offered to marry plaintiff, she had accepted his offer, and they had then mutually agreed to enter into a marital relationship; that on March 25, 1928, in furtherance of their mutual agreement, the parties went through a ceremonial marriage at Fort Pierce; that following their mutual agreement and the ceremonial marriage the parties had lived together as husband and wife, and plaintiff was held out by defendant as his wife and was reputed to be his wife in various communities in Florida; and that in 1929 the parties came to live in New Jersey where they continued to cohabit as man and wife and were known and reputed as such in the several communities in which they resided. Two children were born of the marriage, both now dead.

Answering the amended complaint defendant denied both the ceremonial and the common-law marriages, stated there was no public or other record of the alleged ceremonial marriage because none had ever taken place, and by way of separate defense to both counts claimed (as before) that when he first met plaintiff she told him her name was Mary Garrett and that she was the wife of Cleveland Garrett, whom she had deserted and who was then living.

The hearing took three days and covers more than 500 pages of transcript. After considering the testimony and the arguments and briefs of counsel the trial judge filed an opinion in which he held that the ceremonial marriage had not been proved. In reaching that conclusion he stressed the fact that no marriage certificate or other record had been produced; rather, defendant's investigation indicated there was no such record. As for the alternate claim that there had been a common-law marriage, the court held that plaintiff had to show there was no impediment to her entering into such relation before she could establish it. Having testified that she had once been ceremonially married to Thompson, she was under a disability to enter into any common-law arrangement with defendant. The court considered the prior marriage to Thompson as dispositive of the case and held

that plaintiff was never the wife of defendant. The judgment of dismissal followed.

A ceremonial marriage is usually proved by producing the marriage certificate or a public record of the marriage. However, there are other ways of establishing such a marriage, as by those who attended the ceremony or, perhaps less satisfactorily, by witnesses to whom the parties spoke soon after the event and who confirmed the fact that a ceremony had actually taken place. It would appear that there was some testimony to the latter effect. Since the trial judge stressed the lack of any record of a ceremonial marriage, it is not clear whether he considered and passed on the question of whether the parties had in fact participated in a marriage ceremony, established by proofs other than the public record. We are therefore without the benefit of a definite finding by the trial court as to whether a ceremonial marriage had been proved in that fashion.

Although much testimony was taken concerning the parties living together as husband and wife, and their holding each other out as such in social relations and business affairs, there is no finding on the question of whether a common-law marriage was established, the ceremonial marriage not having been proved by record or otherwise. Common-law marriages were and are valid in Florida. Tegenborg v. Tegenborg , 26 N.J. Super. 467 (App. Div. 1953), explained in Danes v. Smith , 30 N.J. Super. 292, 299-300 (App. Div. 1954). They were ...


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