COURT OF APPEALS

        DECISION

   DATED AND RELEASED

 

                 July 6, 1995

 

 

 

 

         NOTICE

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.  See § 808.10 and Rule 809.62, Stats.

This opinion is subject to further editing.  If published, the official version will appear in the bound volume of the Official Reports.

 

 

 

 

No.  94-1247

 

STATE OF WISCONSIN               IN COURT OF APPEALS

     DISTRICT IV           

                                                                                                                       

LORENZA D. THOMPSON,

 

                                                            Petitioner-Appellant,

 

                        v.

 

LENNORE BIGGERS THOMPSON,

 

                                                            Respondent-Respondent.

                                                                                                                      

 

 

                        APPEAL from an order of the circuit court for Dane County:  DANIEL R. MOESER, Judge.  Affirmed.

                        Before Eich, C.J., Gartzke, P.J., and Vergeront, J.

                        PER CURIAM.   Lorenza D. Thompson appeals from an order by which the circuit court denied his action to affirm his marriage with Lennore Biggers Thompson.  Lorenza alleges that the trial court failed to give full faith and credit to Georgia law, and that under Georgia law, he and Lennore are common-law husband and wife.  For the reasons set forth below, we affirm.

   BACKGROUND

                        During the mid 1980's, Lorenza and Lennore cohabited in Georgia.  During this time, it is undisputed that Lennore did not object when Lorenza introduced her to people as his wife.  In addition, Lennore signed leases and other legal papers as Lorenza's wife, both in Georgia, and in other states where the couple moved later.  Citing Georgia case law, Lorenza argues these circumstances suffice to create a common-law marriage. 

                        Lennore testified that she signed papers and accepted the appellation of "wife" under duress.  She testified that she did not consider herself married.  She introduced evidence that Lorenza also knew that they were not married.  Specifically, in a letter to Lennore's mother, Lorenza wrote:

As to marriage, I have asked her to marry me many times but they were wrong times, because she said no.  When she wanted me to propose I didn't know and failed to ask.

Based on Lennore's testimony and especially upon Lorenza's letter, the circuit court determined that Lorenza and Lennore were not married.  It therefore refused to affirm the marriage.

STANDARD OF REVIEW

                        Where there is a mixed question of law and fact, we determine whether the factual finding is clearly erroneous, and whether the legal holding is correct. Compare Department of Revenue v. Exxon 90 Wis.2d 700, 713, 281 N.W.2d 94, 101 (1979), aff'd 447 U.S. 207 (1980) (reviewing court examines factual and legal holdings separately) with § 805.17(2), Stats. (findings of fact shall not be set aside unless clearly erroneous) and Ball v. District No. 4 Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984) (appellate court determines questions of law without deference to the trial court).  We address fact and law in turn.

   ANALYSIS

                Fact

                        The circuit court found as a matter of fact that Lennore was unwilling to be married, and that Lorenza did not think the parties were married.  This finding is not "clearly erroneous."  Rather, the record supports this finding (Lennore's testimony and Lorenza's letter).

                Law

                        Lorenza claims that Brown v. State, 208 Ga. 304, 66 S.E.2d 745 (1951), stands for the proposition that cohabitation and a subsequent holding out as husband and wife suffice to create a common-law marriage in Georgia.  However, Brown is inapposite.  In Brown, the issue was whether a common-law wife could testify against her common-law husband.  In holding the wife not competent to testify, the court determined that the status of common-law marriage could be deduced from a cohabiting couple holding itself out as married, and living together for some time.  Brown is distinguishable because neither party to the marriage sought to challenge it.  Brown does not control where, as here, one of the parties to the alleged marriage claims that she did not intend to become married.

                        Similarly misplaced is Lorenza's reliance upon Fanning v. State, 46 Ga. App. 716, 169 S.E. 60 (1933).  Lorenza argues that under Fanning, the burden of disproving the married state is upon the person challenging the validity of the marriage.  He claims that the burden was therefore on Lennore to show they were not married, a burden he claims Lennore failed to discharge.  Lorenza misunderstands the "burden" involved.

                        In Fanning, the issue was whether Eddie Fanning had committed bigamy.  In holding that he had, the court noted that the burden is on one who seeks to challenge the validity of the marriage.  However, this remark was made in the context of a larger statement that marriages between persons unable or unwilling to contract are void as are marriages procured by fraud.  Id., 169 S.E. at 62.  Therefore, held the court, in order to show unwillingness to contract, the party opposing the marriage had to introduce proof to overcome a prima facie presumption of regularity.  Lennore's testimony of unwillingness, coupled with Lorenza's admission by letter that there was no marriage, certainly overcome any presumption.  Having overcome the presumption, Lennore discharged any "burden" under Georgia law.

                          By the Court.—Order affirmed.

                        This opinion will not be published.  See Rule 809.23(1)(b)5, Stats.