Are We Married, Or What's The Deal?

According to Oklahoma statutes, "Marriage is a personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and of entering into it is necessary...". 43 O.S. §1. It should go without saying that "divorce" between two people can only occur if the two people are married in the first place!  If they are not married, divorce is not the remedy but annulment or tort remedies might be. This chapter discusses the following topics:

   Who Can Marry? For a marriage to exist (ceremonial or common law), the marriage must be between people who have the capacity to marry.
   Ceremonial Marriages.  A ceremonial (i.e., license, ceremony, certificate) marriage is presumed valid. Even so, some marriages might not be.
   Common Law Marriage.  In Oklahoma, a common law marriage is just as valid as a ceremonial marriage. Whitney v. Whitney, 1942 OK 268, 134 P.2d 357. If disputed, the person claiming one exists must prove that it does.
   Burden of Proof
   Time(s) of Presentment
   The Element of Cohabitation
   Non-Divorce Remedies.  Oklahoma does not recognize "palimony". But, some remedies may be available for various issues.
   Annulment
   Intentional Infliction of Emotional Distress
   Fraudulent Inducement To Marry
   Tort Theories Which Are Supportable Or Not
   Tort Damages

  Who can marry?  Under Oklahoma law, only persons over 18 (with exceptions) and of the opposite sex may marry. 43 O.S. §3. Polygamous marriages are "forever prohibited". Oklahoma Constitution, Art. 1, §2. And, 43 O.S. §2 identifies other people who cannot marry:

Marriages between ancestors and descendants of any degree, of a stepfather with a stepdaughter, stepmother with stepson, between uncles and nieces, aunts and nephews, except in cases where such relationship is only by marriage, between brothers and sisters of the half as well as the whole blood, and first cousins are declared to be incestuous, illegal and void, and are expressly prohibited. Provided, that any marriage of first cousins performed in another state authorizing such marriages, which is otherwise legal, is hereby recognized as valid and binding in this state as of the date of such marriage.

Oklahoma's "first cousin courtesy" does not extend to same-sex marriages which may be lawful under another state's law. 43 O.S. §3.1.

Another statute, 43 O.S. §127, provides that even though a divorce judgment is "final" on the date rendered (spoken by the judge), neither party may marry anyone other than their just-divorced spouse until six months pass from that date. 43 O.S. §123 adds this:

It shall be unlawful for either party to an action for divorce whose former husband or wife is living to marry in this state a person other than the divorced spouse within six (6) months from date of decree of divorce granted in this state, or to cohabit with such other person in this state during said period if the marriage took place in another state; *** Any person violating the provisions of this section by such marriage shall be deemed guilty of the felony of bigamy. Any person violating the provisions of this section by such cohabitation shall be deemed guilty of the felony of adultery. ***

So, if a just-divorced Oklahoma resident marries a new spouse within the six month hiatus in Texas, that's a legal marriage. If the same person marries a new spouse in Oklahoma during that time, that's an illegal marriage. If either person cohabits with their new spouse in Oklahoma during that time, that's a crime. See Copeland v. Stone, 1992 OK 154, 842 P.2d 754.

If the impediments to marriage are capable of removal (e.g., underage persons become adults, a person already married to another is divorced from "the other") and cohabitation continues after removal of the impediment, the invalid marriage ripens into a valid common law marriage. See White v. McGee, 149 Okl. 65, 299 P.2d 222 (1931) and Burdine v. Burdine, 1952 OK 103, 242 P.2d 148. The same is true for marriages entered into during the six-month prohibited period following divorce. Copeland v. Stone, supra; Wasson v. Carden, 1979 OK 69, 594 P.2d 1223. But, marriages for which the impediment cannot be removed are void per se and are incapable of cure, e.g., incestuous marriages. Fearnow v. Jones, 34 Okl. 694, 126 P. 1015 (1912).

  Ceremonial Marriages.  If a husband and wife have a document from the state saying they are married (i.e., a certificate of marriage), their marriage is presumed to be valid. Norton v. Coffield, 1960 OK 182, 357 P.2d 434; Matter of Estate of Allen, 1987 OK 45, 738 P.2d 142. A person asserting the invalidity of a ceremonial marriage has the burden of proving its invalidity by clear and convincing evidence.  See Justice Simm's concurring opinion in Matter of Estate of Allen, supra, and cases cited therein.

  Common Law Marriage.  Despite almost annual attempts in Oklahoma Legislature to eliminate it, Oklahoma remains a state which recognizes "common law" marriages. To be sure, cohabitation, by itself, does not create a common law marriage. The nub is: have the parties agreed to be married?

What is a common law marriage? Unartfully put, it is a marriage without papers. Many Oklahoma appellate court decisions have discussed it and they are not all in sync. But, all cases would agree that a common law marriage requires an agreement (probably oral... I've yet to see such a written agreement) between a man and a woman who have the capacity to enter into a marriage who proceed to be married. Probably all Oklahoma cases agree to three of four possible elements of a common law marriage: (1) competent parties (2) who agree to be married to each other (3) exclusive of all others. Additionally, (4) some cases hold that cohabitation, living together as husband and wife, is also essential, but some do not. See The Element of Cohabitation, below.

  Burden of Proof:  Oklahoma cases require that the person who asserts the existence of a common law marriage has the burden to prove that relationship by "clear and convincing" evidence. Rath v. Maness, 1970 OK 111, 470 P.2d 1011; Mueggenborg v. Walling, 1992 OK 121, 836 P.2d 112. No Oklahoma case law holds that any single piece of evidence, by itself, proves the point or even creates a presumption that the marriage exists or does not (such as income tax returns filed by one or both parties during their relationship).

  Time(s) of Presentment:  In a divorce case in which the plaintiff alleges that a common law marriage exists, if the defendant disputes that claim, a hearing must occur on that issue before the court may enter divorce related temporary orders. Utley v. Rowe, 1943 OK 224, 138 P.2d 71, 192 Okl. 546. But, regardless of the court's interim decision, the issue remains alive at the time of the final trial and the interlocutory order is not res judicata. Elliott v. Elliott, 1954 OK 356 , 279 P.2d 328; Renbarger v. Renbarger, 1994 OK 140, 889 P.2d 1250.

  The Element of Cohabitation:  Is cohabitation an essential element of a common law marriage in Oklahoma? The cases are divided. One case, Mueggenborg v. Walling, 1992 OK 121, 836 P.2d 112, best illustrates that division. The children's mother (Muggenborg) commenced a paternity action to declare Walling the children's father and to obtain their custody. Walling's counterclaim admitted paternity, asked for custody, and alleged the parents were common law married and requested a divorce. The trial court found that Walling was the father of one of the two children, awarded custody of both to the Muggenborg, and ruled that a common law marriage was not established by the evidence. The trial court's decision was sustained by the Oklahoma Supreme Court in a 5-4 decision. The opinion does not state whether the custody, or the common law element, or both, issues decided by the majority were the bases for dissent. The majority and concurring opinions discuss the point, and more. The interspersed numbers, below, reference footnotes in the respective opinions.

Justice Alma Wilson wrote for the majority:

¶8 Rath v. Maness, 470 P.2d 1011, 1013 (Okla. 1970), holds:

A common law marriage requires competent parties, who enter the relationship by mutual agreement, exclusive of all others, consummating arrangement [sic] by cohabitation and open assumption of marital duties, and such relationship must be established by evidence that is clear and convincing. Maxfield v. Maxfield, Okl., 258 P.2d 915. 2

2 Our reported cases are not consistent in their holdings concerning the necessity of consummation of the common law marriage by cohabitation and open assumption of marital duties. There is a line of cases of which Quinton v. Webb, 207 Okl. 133, 248 P.2d 586 (1952) is one. It holds:

There are jurisdictions in which it is held that if there is a valid agreement of marriage, in praesenti, cohabitation is not an essential element of a common law marriage, while other courts hold that assumption of the marital relation is an essential element. Oklahoma has followed the latter rule. In re Trope's Estate, [190 Okl. 453, 124 P.2d 733 (1942)] and cases therein cited.

Quinton, 248 P.2d at 589. There are other cases that hold that an element of common law marriage is consummation by cohabitation as man and wife or open mutual assumption of marital duties and obligations. D.P. Greenwood Trucking Co. v. State Industrial Com'n, 271 P.2d 339, 342 (Okla. 1954). As an explanation for the requirement of cohabitation, Quinton comments:

In any event, it can be said that open and notorious cohabitation of the parties is evidentiary of a  marriage agreement, other elements being present, while lack of such open cohabitation of the parties may be evidence tending to discredit the alleged agreement, thus casting upon the alleging party a greater burden in the actual proof of such agreement.

While this may serve as some explanation of the discrepancy in the cases, cohabitation is not an issue in the case at bar.

Marian Opala, Chief Justice, concurred. His full opinion (all emphasis and notes are his) follows:

¶1 The court upholds today the nisi prius ruling that the parties to this appeal had not entered into a common law marital relationship. 1  Although I accede to the court's judgment and concur in its pronouncement, I write separately to correct the faulty exposition of common law marriage that crept into some of our extant jurisprudence. The significance of cohabitation 2  in the context of a common law marriage has suffered from several decades of irreconcilably discordant jurisprudence. 3  This case presents an opportunity to reinfuse the body of our unwritten law 4 with the ancient lore that regards cohabitation as not essential to achieving matrimonial status by common law marriage.

¶2 Common law marriage has roots as far back as the 12th Century canon law. 5  Under the rules introduced by Pope Alexander III, 6  marriage could be contracted by consent alone sans ecclesiastical ceremony, parental consent, or physical consummation if the consent was "in the words of the present tense." 7  Under Oklahoma law, first pronounced in 1905, the same rule applies - a common law marriage is contracted by per verba de praesenti. 8  If a man and woman declare that they take each other as husband and wife, at the moment of their mutual consent, they are married. 9  Early case law recognizes that the vital point of inquiry into the existence of a nonceremonial marriage focuses on whether there was mutual consent of both parties to a present or immediate assumption of the marital bond. Repute and mutual holding out as husband and wife are merely evidentiary of the antecedent consent's reality. 10  Cohabitation is probative of a voluntary relationship which may be marital in character if mutual consent is otherwise found to have been present. Cohabitation alone is insufficient as proof of consent per verba de praesenti. 11

¶3 Scattered cases that regard cohabitation as a prerequisite for a consensual nonceremonial marriage 12  are clearly irreconcilable with the earlier correct exposition of common-law marriage. 13  The distorted gloss of latter years may stem from judicial misidentification of a probative fact with an element of marriage itself. The erroneous view may also have been influenced by excessive judicial fear that a status so important could be created so informally. The erroneous impression that physical consummation is essential to matrimony without ceremony may have contributed to the confusion. 14

¶4 Cohabitation is not a necessary element of a common-law marriage. It cannot validate a bond that falls short of the legal mark because of want of mutual consent. Consensus, non concubitus, facit matrimonium. 15

¶5 I would today overrule the distortions scattered throughout our case law and excise from its corpus references to cohabitation as a prerequisite for a common-law marriage. 16  All opinions in conflict with Reaves 17 should be regarded as an incorrect exposition of the ancient canonical doctrine still effective in Oklahoma today as part of our common law. 18

Footnotes:

1 A "common-law marriage" is more properly called a "preTridentine canonical consensual marriage." Ancient canon law, which consisted of the decrees of the various popes was the basis of matrimonial law in England. Before the Council of Trent (Trident in Latin) in 1563 canon law required no ceremony or religious sacrament for a valid marriage. The canon and civil laws administered in the ecclesiastical courts of England were brought from England to this side of the Atlantic and have been received as a part of Oklahoma law. Reaves v. Reaves, 15 Okl. 240, 82 P. 490, 494 (1905).

2 Cohabitation means living together. WEBSTER'S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, 520 (2nd Ed. 1959). It may include but is not synonymous with sexual relations.

3 Compare the cases infra note 10 with those infra note 16.

4 The unwritten law earlier known by its Latin designation of lex non scripta regni Angliae is the nonstatutory law of the kingdom of England and Wales, also called the common law, which originated from custom and judicial decisions. McCormack v. Oklahoma Pub. Co., Okl., 613 P.2d 737, 740 (1980).

5 See supra note 1. For a discussion of the canonical theory of marriage, see 2 F. Pollock and F.W. Maitland, THE HISTORY OF ENGLISH LAW, 368379 (Cambridge 1968).

6 Canonists before Pope Alexander III considered marriage effected by the physical union of man and woman in carnal copulation. Since there could also be copulation without marriage, they decided a mental element was also necessary. They held that the marriage began by agreement but became complete and indissoluble once the agreement was sealed by a physical union. This view was replaced by the later canon law that did away with the physical consummation requirement. See J.H. Baker, AN INTRODUCTION TO ENGLISH LEGAL HISTORY, 391 (2d Ed. 1979).

7 Such a bond was indissoluble and even before consummation would be upheld in preference to a subsequent church marriage with a different spouse. See J.H. Baker, AN INTRODUCTION TO ENGLISH LEGAL HISTORY, 546 (3rd Ed. 1990).

8 Per verba de praesenti means literally "by words in the present tense." BLACK'S LAW DICTIONARY, 1031 (5th Ed. 1987). In canon law this medieval Latin phrase means "words that make mutual consent immediately effective."

9 Marriage was, of course, a church sacrament, but the church accepted the civil law doctrine that marriage was in one aspect a contract, created by mutual consent. See M. Radin, HANDBOOK OF ANGLOAMERICAN LEGAL HISTORY, 504505 (West 1936).

10 For an eloquent history of the common-law marriage and an explanation of how the concept came to be adopted in Oklahoma, see Reaves, supra note 1. For our early jurisprudence that correctly defines the elements of consensual nonceremonial marriage, see also Allen v. Smith, 177 Okl. 605, 61 P.2d 564 (Syllabus 2) (1936); Richard v. Richard, 172 Okl. 397, 45 P.2d 101 (Syllabus 2) (1935); Gustin v. Carshall, 156 Okl. 173, 10 P.2d 250 (Syllabus 5) (1932); Tiuna v. Willmott, 162 Okl 42, 19 P.2d 145 (Syllabus 1) (1933); Fisher v. Fisher, 116 Okl. 129, 243 P. 730 (1926); Mudd v. Perry, 108 Okl. 168, 235 P. 479, 482 (1925); Horrigan v. Gibson, 87 Okl. 1, 206 P. 219, 221 (1922).

11 See supra note 8 for the definition of per verba de praesenti.

12 The court distinguishes today cases that consider cohabitation an essential element, e.g., Rath, infra note 16 at 1013, from those that consider cohabitation or assumption of marital duties essential for a common-law marriage, e.g., Greenwood, infra note 16 at 342. A recent case requires "exclusive relationship, proved by cohabitation" for a common-law marriage. Matter of Estate of Stinchcomb, infra note 16 at 29. In my view cases that require cohabitation and open assumption of marital duties are no different from those which require cohabitation or open assumption of marital duties or some other unnecessary element. All of those cases fail to recognize that cohabitation is merely probative of a voluntary relationship which may be marital in character if mutual consent is otherwise found to have been present.

13 Compare the cases supra note 10 with those infra note 16.

14 See Reaves, supra note 1 for the correct exposition of common-law marriage.

15 Consent, and not cohabitation, constitutes marriage. BLACK'S LAW DICTIONARY, 276 (5th Ed. 1979).

16 Following is a nonexhaustive list of Oklahoma cases that appear to consider cohabitation an essential element of a common-law marriage:

Matter of Estate of Stinchcomb, Okl., 674 P.2d 26, 29 (1983);
Rath v. Maness, Okl., 470 P.2d 1011, 1013 (1970);
Daniels v. Mohon, Okl., 350 P.2d 932, 935 (1960);
D.P. Greenwood Trucking Co. v. State Industrial Com'n, Okl., 271 P.2d 339, 342 (1954);
Maxfield v. Maxfield, Okl., 258 P.2d 915, 921 (Syllabus 2) (1953);
Quinton v. Webb, 207 Okl. 133, 248 P.2d 586, 589 (1952);
Ridgeway v. Logan, 205 Okl. 603, 239 P.2d 778, 782 (1952);
In re Blackhawk's Estate, 195 Okl. 390, 158 P.2d 168 (Syllabus 1) (1945);
Aurand v. Aurand, 195 Okl. 643, 161 P.2d 857 (1945);
Vann v. Vann, 186 Okl. 42, 96 P.2d 76, 77 (1939);
In re Graham's Estate, 169 Okl. 568, 37 P.2d 964 (1934);
Baker v. Jack, 112 Okl. 142, 241 P. 478, 480 (1925);
Bothwell v. Way, 44 Okl. 555, 145 P. 350, 351 (1915);
Estate of Phifer, 629 P.2d 808, 809 (Okl.App. 1981);
Estate of Bouse, 583 P.2d 514, 517 (Okl.App. 1978);
Dowell v. Welch, 574 P.2d 1089, 1091 (Okl.App. 1978);
Matter of Estate of Rogers, 569 P.2d 536, 539 (Okl.App. 1977).

The Court of Criminal Appeals of Oklahoma may want to take note of the following cases that appear to consider cohabitation an essential element of a common-law marriage:

Blake v. State, 765 P.2d 1224, 1225 (Okl.Cr. 1988);
Marshall v. State, 537 P.2d 423 (Okl.Cr. 1975);
Fulbright v. State, 508 P.2d 688, 693 (Okl.Cr. 1973);
Vaughn v. State, 489 P.2d 507 (Okl.Cr. 1971);
McKee v. State, 452 P.2d 169, 172 (Okl.Cr. 1969);
Wheaton v. State, 85 Okl.Cr. 132, 185 P.2d 931 (1947);
Chapman v. State, 84 Okl.Cr. 41, 178 P.2d 638, 640 (1947).

17 Reaves, supra note 1.

18 The provisions of 12 O.S. 1991 § 2 are:

"The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object." [Emphasis mine.]

  Annulment. An "annulment" is essentially an official declaration by the state that no marriage exists between a man and a woman. Sometimes, an annulment decree is just a good idea if any doubt exists, now or as may come to exist in the future (particularly on the death and/or marriage of one of the parties). In Whitney v. Whitney, 1942 OK 268, 134 P.2d 357, the Oklahoma Supreme Court said:

We are impressed by what is said in 18 R. C. L. 441, 69:
"A marriage void in its inception does not require the sentence, decree or judgment of any court to restore the parties to their original rights or to make the marriage void, but though no sentence of avoidance be absolutely necessary, yet as well for the sake of the good order of society as for the peace of mind of all persons concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction."

While a court's official declaration of "no marriage" may clarify an ambiguous relationship, Oklahoma statutes specifically addressing annulment are almost nonexistent. While some statutes mention divorce and annulment in the same statute, many others do not. The following table shows comparisons:

Issue Divorce Statute Annulment Statute
Minimum residence 6 months (43 O.S. §102) No statute
Venue of action Where defendant resides or where plaintiff has resided for 30 days Same as divorce
Grounds for the action Various (43 O.S. §101) Marriage during 6 month hiatus following divorce (43 O.S. §126); underage or lacking mental capacity (43 O.S. §128)
General provision for child custody, visitation and support The same are required to be made (43 O.S. §112) Same as divorce
Temporary orders while case is pending Authorized (43 O.S. §110) Not mentioned in 43 O.S. §110; but, by implication, see 12 O.S. §1384.1.E.; see Stone v. Stone, 1944 OK 28, 145 P.2d 212
Child's custody or visitation preference Authorized to be considered (43 O.S. §113) Same as divorce
Delayed final order where minor children are involved 90 days after action's commencement, unless waived (43 O.S. §107.1) No statute
Restoration of wife's prior name Discretionary with the wife (43 O.S. §121) No statute
Restoration of premarital separate property Required (43 O.S. §121) No statute
Division of marital property and debt Required (43 O.S. §121) No statute
Alimony to a spouse Possible (43 O.S. §121) No statute
Attorney fees and litigation expenses Possible (43 O.S. §110) No statute but see Stone v. Stone, 1944 OK 28, 145 P.2d 212
Remarriage to another 6 month hiatus (43 O.S. §123) No statute
Many other statutes which address child custody, visitation and/or support are not limited to divorce, annulment or other actions but apply to all types of actions involving child custody, visitation and/or support.

The number of annulment cases reaching Oklahoma's appellate courts pales by comparison to the number of divorce cases which do. Still, some case law adds some meat to an annulment action's bare statutory bones.

First, consider Kildoo v. Kildoo, 1989 OK 6, 767 P.2d 884. To understand this case, it must be understood that an Oklahoma statute provides that if the recipient of support alimony remarries, unless a motion be filed within 90 days of that remarriage to continue the support beyond remarriage, the support alimony obligation stops upon the recipient's remarriage. 43 O.S. §134.B provides, in part:

* * * Upon proper application the court shall order payment of support terminated and the lien discharged after remarriage of the recipient, unless the recipient can make a proper showing that some amount of support is still needed and that circumstances have not rendered payment of the same inequitable, provided the recipient commences an action for such determination, within ninety (90) days of the date of such remarriage.

Understanding that, understand this: Ms. Kildoo was the recipient of a support alimony judgment from her first husband. Then, while support alimony remained due, Ms. Kildoo married husband number two. About two and one-half months later, Ms. Kildoo filed an annulment action against husband number two, alleging that misrepresentations were made and were relied on by both parties, i.e., fraud. The annulment was granted. Then, the first husband filed a motion to terminate support alimony, alleging the remarriage of his former wife and asking restitution for the alimony he had paid for the three months after Ms. Kildoo's remarriage. The trial court denied that motion. On appeal, the Supreme Court reversed and was presented an opportunity to discuss some aspects of annulment law in this state:

¶5 This Court has previously held that when a marriage is ended by a decree of annulment, the grounds are usually those that apply to the cancellation of contracts, but that the marriage relationship is of such public concern that courts must scrutinize actions to annul marriages to discern their probable effect upon the public as upon the individual parties. Blunt v. Blunt, 198 Okl. 138, 176 P.2d 471, 472 (1947). The case at bar is one in which both parties agreed to an annulment based upon "misrepresentations." The equitable basis for such an annulment is "fraud." Agreed annulments grounded upon fraud by both parties as a basis for receiving alimony payments from a previous spouse is a cause for concern to this Court.

¶6 The appellee in the case at bar was in a position to choose between two sources of support. Under Oklahoma law, fraud is grounds for either an annulment or a divorce. Title 12 O.S. 1981 § 1271 [12-1271] (Sixth) reveals that "Fraudulent contract" is one of the grounds for divorce. [Ed. note: the current citation is 43 O.S. §101.] In the case of In re Mo-se-che-he's Estate, 188 Okla. 228, 107 P.2d 999, 1003 (1940), "fraud" was given as one of the grounds for annulment in a court of equity. This Court cited 38 C.J. Marriage § 121 (1925) with approval:

[A] court of chancery, in the exercise of its ordinary powers, and without the authority of statutes may take jurisdiction of a suit to annul a marriage where the ground alleged is one upon which equity gives relief in respect to contracts generally . . . in case of fraud, error, duress, mental incapacity, or want of consent generally.

¶7 (Emphasis added. Material quoted above now found in 55 C.J.S. Marriage § 52 [1948].) Therefore, although appellee could have chosen to divorce her second husband, she chose instead to seek an annulment. Where a party is in a position to choose between either divorce or annulment, that party can choose which of two parties the court will make responsible for support alimony, and thereby shifts the support liability back to the party with superior finances.

¶8 Concerning revival of alimony in the case of annulled marriages where the annulment was based upon fraud, the majority view appears to be that alimony will not be reinstated. We believe that such a holding is based upon sound reasoning. * * *
* * *
¶12 We hold that where the recipient of support alimony remarries, and where the divorce decree provides for termination of that support upon remarriage, that unless the recipient applies for a continuation of support pursuant to 12 O.S.Supp. 1987 §1289 within ninety days of that remarriage, the support alimony will not be reinstated upon the grounds that the second marriage was annulled based upon the fraud of both parties.

As applies to this discussion, then, Kildoo apparently adopts the language quoted from Corpus Juris Secundum (for you lay readers, C.J.S. is rather like an Encyclopedia Brittanica for lawyers) that fraud, error, duress, mental incapacity, or want of consent, will support an annulment action in Oklahoma.

Second, consider a trilogy of cases arising from a "marriage" between Mr. & Ms. Whitney which gave rise to three distinct proceedings before the Oklahoma Supreme Court in the 1940's: two related to the same trial court case, (1) Whitney v. Whitney, 1942 OK 268, 134 P.2d 357, and (2) Whitney v. Whitney, 1947 OK 44, 181 P.2d 245; and the third, (3) Whitney v. Whitney, 1944 OK 205, 151 P.2d 205, is related to a different lawsuit spawned by the Supreme Court's first opinion, a suit for damages for fraudulent inducement to enter into a common law marriage when the defendant had a living undivorced wife.

Each decision sheds a little light on different aspects of the subject discussed here. In a nutshell, Mr. Whitney entered into a common law marriage with Ms. Whitney in 1928 and five children were born of that relationship. As it developed, Mr. Whitney's 1913 marriage to another lady remained intact through the time of the second Ms. Whitney's divorce action. At the time of divorce, a since repealed ground for divorce was that, "either of the parties had a former husband or wife living at the time of the subsequent marriage." 12 O.S. 1941 §1271(1) and the trial court granted the second Ms. Whitney a divorce on that basis. But, since the first marriage had never concluded and since Oklahoma Constitution, Article 1, Section 2, prohibits plural marriages, the Supreme Court majority concluded that the Legislature's provision for divorce in such cases was of no consequence. Effectively, the majority treated the matter as an annulment action and determined that various incidents of divorce do not apply to such actions, e.g., temporary or permanent spousal support, attorney fees, or adjustment of property rights under divorce statutes.

At the same time, the court did hold that the trial court would have authority to "adjust" property rights under its equitable power:

We are of the opinion that when it conclusively appears, as herein, or is adjudged on competent evidence that the relation of husband and wife never existed legally, the statutory power to adjust property rights, 12 O.S. 1278 (1941), has no application, but that the power to adjust such rights is equitable. See Kraufer v. Kraufer, supra, and Tingley v. Tingley, 179 Okla. 201, 64 P.2d 865.

The court went on to favor adjustment of the parties' property rights along the lines of a partnership dissolution. At this point, the opinion and its aftermath become confused, since the parties had entered into some sort of settlement contract during the divorce action's pendency and the Supreme Court's language referencing that agreement. On remand, the trial court interpreted the Supreme Court's language by entering judgment based on the parties' contract in the divorce action. But, in a subsequent appeal involving the same trial court case, Whitney v. Whitney, 1947 OK 44, 181 P.2d 245, the Supreme Court held that the trial court had misinterpreted its first decision by entering judgment based on the parties' contract. Instead, the court said that "the parties were relegated to an independent suit for an adjustment of their property rights". Frankly, both these opinions have text which are capable of various interpretations (in this reader's opinion, at least) and it's difficult to glean much absolute meaning, except for these things:

Whitney v. Whitney, 1944 OK 205, 151 P.2d 205, involved a new action by the second Ms. Whitney, presumably filed after the first appeal's decision. In this action, she alleged that Mr. Whitney had fraudulently induced her to enter into a common law marriage at a time that Mr. Whitney had a living undivorced wife, and she sought $1,000,000 actual damages and $500,000 punitive damages. Defendant's position, that plaintiff's prior divorce action constituted an election of remedies and that plaintiff was estopped from bringing the subsequent action, was sustained by the trial court. But, in this appeal, the Supreme Court overruled the trial court's decision and ordered to case to proceed. Apparently, the contract alluded to above had been abandoned by the parties, or so plaintiff alleged. What may have occurred on this appeal's remand is unknown to this writer.

A fair synopsis of the three Whitney decisions may be this:

(1)  Annulment, not divorce, is the proper remedy if, at the time a second relationship is being dissolved, an undivorced spouse of one of the parties is still living;
(2)  Annulment actions cannot involve temporary or final spousal support;
(3)  Annulment actions can involve "adjustment" of the parties' property rights based on a vague partnership theory; and
(4)  An independent suit for damages based on fraud is also a possibility.

The first Whitney case was cited in Andersen v. Fellers, 1998 OK CIV APP 53, 960 P.2d 851. Plaintiff-wife's petition alleged common law marriage, but, at trial, she abandoned that position and the trial court treated the matter as a paternity action. As to property issues, the trial court ordered the father to pay the mother $1,500 for her interest in an automobile the parties acquired while living together. Citing Whitney v. Whitney, 1942 OK 268, 134 P.2d 357, the Oklahoma Court of Civil Appeals affirmed (over the dissent of Judge Hansen). The Court said,

Allowing the claim to be tried in this proceeding served the interests of justice and saved the parties time and expense.

While that seems sensible enough, it also appears to be inconsistent with a Whitney case not cited in the opinion, Whitney v. Whitney, 1947 OK 44, 181 P.2d 245.

  Intentional Infliction of Emotional Distress.  This relatively "modern" tort was unknown at common law. Oklahoma has held it to be a potential remedy in at least one scenario: The It's-Your-Kid, Wev'e-Got-To-Get-Married (But-It's-A-Lie) circumstance. Miller v. Miller, 1998 OK 24, 956 P.2d 887, another majority opinion authored by Justice Opala.

The third Whitney decision, Whitney v. Whitney, 1944 OK 205, 151 P.2d 205, was cited and discussed in Miller v. Miller, 1998 OK 24, 956 P.2d 887, and in a circumstance that most all divorce lawyers have run across at one time or another. In Miller, the man alleged that in 1980, when he was seventeen years old and his wife-to-be was fifteen, the wife-to-be and her parents duped him into believing that the wife-to-be was pregnant, that the child was his, and, for these reasons, persuaded him to marry the wife-to-be. Five years later, that marriage ended in divorce. He was awarded joint custody of the child. Much later, in 1995 when the child was fifteen years old, she commenced to live with her "father". A year later, the "daughter" (called "A" in the court's opinion) confided to her "father" that, before she began living with her "father", her mother and her parents told her a dark secret:

* * * her mother and her grandparents, Bill and Nora Hall, had told her that Jimmy was not her real father and had urged her to "get to know her 'real' family." According to Jimmy, A told him that her mother and grandparents had identified her real father, had introduced her to members of her "real family," had given photographs of A to members of this "real family", and had stated to her that there was nothing either she or Jimmy could do about it.

Indeed, paternity testing determined that Jimmy was not "A's" father. But, he did do something about it. Without disputing his legal paternity of or attempting to break his bond with "A",  he sued the mother and her parents for damages and equitable relief based on the theories of fraud, intentional infliction of emotional distress, and a monetary recovery of child support he had paid to the mother. The trial court's decision dismissing the man's claim for failure to state a claim upon which relief could be granted was partially reversed. The Supreme Court disallowed any restitution of child support paid, but it did allow his actions for intentional infliction of emotional distress and fraudulent inducement to marry to stand. About the former, the Court said:

This court has agreed that the line between the acceptable and the unacceptable should be drawn in accordance with Comment d to §46 of the Restatement (Second):
". . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!' . . ."

Under the facts plead, the court directed that the father's lawsuit proceed and the case was accordingly remanded to the trial court to do so.

  Fraudulent Inducement To Marry. Similar but not identical to an action for intentional infliction of emotional distress, an action for fraudulent inducement to marry has a bit more vintage in Oklahoma and can also be a proper tort claim under Oklahoma law.

Miller v. Miller, 1998 OK 24, 956 P.2d 887, also contained a cause of action by the father for fraudulent inducement to marry.  About this, Justice Opala writes:

¶38 An action for damages for fraudulent inducement to marry has been recognized in Oklahoma with respect to both void and valid marriages. Like other fraud-based actions, a claim for fraudulent inducement to marry must allege all the elements of common law fraud. These are: 1) a false material representation, 2) made as a positive assertion which is either known to be false, or made recklessly without knowledge of the truth, 3) with the intention that it be acted upon, and 4) which is relied upon by a party to that party's detriment.

The Court took care, however, to limit such actions to promises going beyond "I'll love you till the end of time" types of things:

¶40 We hold that a misrepresentation inducing one to enter into a valid marriage must go to the essential ingredients of the marriage in order to sustain a finding of materiality sufficient to support a cause of action for fraudulent inducement to marry. This is a necessary restriction. Every premarital representation of boundless affection, eternal love, and endless commitment cannot be allowed to give rise to an action for fraud when a marriage breaks down, and love and commitment prove unenduring. Limiting materiality to those representations which go to the essence of the marital relationship will avoid misuse of the judicial system to avenge hurt feelings and disappointed dreams.
* * *
¶45 We hold that a true claim of an existing pregnancy coupled with a false representation that the child is that of the prospective spouse goes to the essentials of the marital relationship and will support an action based on fraud.

  Tort Theories Which Are Supportable Or Not.  Aside from what has been specifically discussed in this chapter, Oklahoma's law is not well defined. But, dicta (important language in an appellate court which is not definitively determined to be part of the court's holding upon the issues on appeal) in Miller v. Miller, 1998 OK 24, 956 P.2d 887, may point the way. Each point in the following quotation references footnotes to decisions in other states. The footnote references are not stated here but may be seen by reading the full opinion.

¶41 The question here is whether the defendants' misrepresentation concerning plaintiff's paternity is material. Does it go to the essence of the marital relationship? In this regard, it is useful to consider those cases in which an annulment has been granted based upon a claim of fraudulent inducement to marry. These cases are instructive because they deal with whether a fraud is sufficiently material to vitiate the marriage contract. If a claim of fraud is sufficient to support an annulment, then it ought to be sufficient to support an action for damages where an annulment is unavailable because the marriage has already been dissolved by divorce.
¶42 Misrepresentations which have been found to go to the essence of the marital relationship, generally in an action for annulment, include concealment of the fact that one party was suffering from syphilis, concealment by the husband that he lacked the physical and mental capacity to engage in normal sexual relations with his wife, concealment of the fact that one party married the other for the sole purpose of obtaining a "green card" from the Immigration Department, concealment of a former narcotics addiction and a prior criminal record, concealment of heroin addiction, and concealment of a criminal record and a false representation that joint funds were being used for child support when they were really being used to pay fines and restitution.
¶43 Misrepresentations which have been found not to be essential to the purposes of the marriage relationship include: misrepresentation of affection, concealment of lesbian activities and drug use prior to marriage, concealment of prior marriage and divorce, concealment of the fact that inheriting the property of the spouse at death was the motive for the marriage, and concealment of a misdemeanor narcotics conviction coupled with a periodic, but not consistent, disabling narcotics addiction.
¶44 Cases involving misrepresentations of pregnancy fall into two categories. One category consists of a false claim of a pregnancy which the woman knows does not in fact exist. Relief has been denied under these circumstances on the ground that a false representation of pregnancy does not go to the essence of the marital relationship because it does not prevent the future performance of the marital obligation to bear only the children of the spouse. The other category consists of a true claim of an existing pregnancy coupled with a false representation that the prospective spouse is the child's father when in fact the father of the child is known or suspected to be another man. The majority of cases, especially those decided since the turn of the century, have held that such fraud goes to the essence of the marital relationship and vitiates the marriage contract.

  Tort Damages.  Miller v. Miller, 1998 OK 24, 956 P.2d 887, did not discuss, and therefore did not decide, the measure of damages, i.e., if a plaintiff proves such a tort to a judge or jury, what does he/she get, how are damages determined? Few decisions address the point.  

Two cases which may point the way, but are not definitive as to, the measure of damages are Tice v. Tice, 1983 OK 108, 672 P.2d 1168, and Mashunkashey v. Mashunkashey, 1941 OK 113, 113 P.2d 190.

In Tice, before marriage, the prospective bride was the recipient of an existing support alimony order from her former husband. In Oklahoma, support alimony obligations ordinarily terminate upon the recipient's remarriage and, at the time of her marriage to Mr. Tice, unaccrued support alimony payments totaling $44,500 were prospectively due from her prior husband.  She wanted, and allegedly received, oral assurances from her prospective groom that, were their proposed marriage to fail, he would make her whole for the loss of the spousal support awarded to her in her prior divorce. In a trial to the court, judgment was entered against Mr. Tice for $41,900 apparently for the following cause:

¶1 The question presented is whether a person, who induces another to marry by the oral promise to reimburse any lost alimony in the event of a subsequent divorce, is liable to pay alimony awarded under a previous divorce decree.

In Mashunkashey, Ms. Mashunkashey was awarded $1,000 actual damages (for mental pain and suffering) and $1,000 punitive damages for the fraud and deceit of Mr. Mashunkashey in inducing her to enter into an illegal marriage contract. Unbeknownst to Ms. Mashunkashey, her husband was married at the time she married him. While it is apparent from the court's opinion that it did not think Ms. Mashunkashey's "reputation" was very much capable of injury, it nonetheless held:

* * * But mental pain and suffering may constitute the basis of an independent action in cases of wilful wrong of the character where mental suffering is recognized as the ordinary, natural and proximate result of such wrong. 17 C.J. 832; see, also, Western Union Telegraph Co. v. Foy, 32 Okl. 801, 124 P. 305, 49 L.R.A., N.S., 343. To fraudulently induce one to enter into a bigamous marriage contract would constitute such a wrong, and the resulting mental pain and suffering would support an independent action for damages.

But here, mental pain and suffering was not pleaded in an independent action but as an element of damages in an action for injury to character resulting from the bigamous marriage induced by defendant. In any event mental pain and suffering constituted a ground of recovery in this case. Even if plaintiff failed, as defendant asserts, to prove damage to her character, she could still show mental pain and suffering, and recover therefor, since such pain and suffering constituted sufficient ground upon which to predicate her actions for deceit.

The two cases discussed above are certainly not exhaustive of all that has been spoken by the Oklahoma Supreme Court. But, they are a sufficient start. Should a further development of the theories expressed be significant, the full opinions and cases referenced should be examined closely, particularly Miller v. Miller, 1998 OK 24, 956 P.2d 887.