Case Notes

Non-Traditional Family Member Stays in Apartment

In 541 Union LLC v. Rivera, 46455/15 (May 1), a Bronx man who had lived with his long-term girlfriend for 12 years but was not married to her was deemed entitled to succeed to his deceased girlfriend's tenancy in their shared rental apartment.

After the female tenant in a rental apartment died, the landlord brought a holdover proceeding against her live-in partner, Rivera, asserting that he was a tenant of the deceased licensee and his license was revoked. Rivera sought succession rights to the tenancy.

The landlord successfully proved his prima facie case that the deceased was the only signatory of the lease and that no one else was designated in the lease or any other related document as a family member or second occupant. Rivera testified, however, that he had begun dating the deceased 18 years before her death, had lived with her in the apartment at issue for 12 years, and that they had not married only because he was married to someone else who refused to grant him a divorce. The court found Rivera's testimony credible, determining that the deceased had relied on him financially, that he had cared for her during her illness and that they had enjoyed a committed relationship during the deceased's lifetime. This being the case, Rivera proved he was the deceased's non-traditional family member, and he was entitled to succeed in the tenancy with a renewal lease in his own name. The landlord's petition was therefore dismissed.

Believing You're Divorced Does Not Make It So

A man who thought his wife had divorced him recently lost his bid to the proceeds of an insurance policy insuring his supposed common law wife, as he could not enter into a common law marriage while still married to someone else. Johnson v. Jackson, 2017 U.S. Dist. LEXIS 77012 (M.D. Ala. 5/22/17).

Cynthia Johnson was in a relationship with Earl Jackson, a truck driver. Jackson drove a truck for Phoenix Transportation, and Johnson accompanied him on his trips. Because of this, Jackson took out a rider insurance policy to cover Johnson, on which he made the premium payments. No beneficiary form was ever completed, but the policy itself declared that “[u]pon receipt of due written proof of death, payment for loss of life of an Insured will be made, in equal shares, to the survivors of the first surviving class of those that follow: the Insured's (1) spouse; (2) children … .”

Johnson died in a 2016 accident while riding in a motor vehicle being driven by Jackson. Johnson's three children (through their father) sought to collect the $200,000 proceeds of the life insurance policy. Jackson made a claim for those same proceeds, claiming he was entitled to them as Johnson's common law husband.

The elements for proving a common law marriage in Alabama are: 1) that the parties had the capacity to marry; 2) that the parties agreed to permanently enter into a marital relationship to the exclusion of all other relationships; and 3) that there was public recognition of the relationship as a marital one, to include marital duties and cohabitation of the parties. McMullins v. McMullins, 202 So. 3d 332 (Ala. Civ. App. 2016). The Johnson children moved for summary judgment on the basis that Jackson had married one Regina Lynn Whidby in Alabama in 2008, and that there was no record of divorce from Whidby in Alabama or in the two counties in Georgia to which Whidby had legal ties. Therefore, the Johnsons asserted that Jackson could not prove the first element of common law marriage in Alabama — that he had the capacity to marry. If Jackson was never legally divorced from Whidby, they argued, he could not have had a valid common law marriage to Johnson even if he lived with her for years in the belief that they had such a marriage.

The proofs offered by the parties became somewhat convoluted. Jackson pointed out that Whidby had remarried in Georgia and that the State of Georgia does not allow marriage unless a divorced party to such union first presents proof of divorce from any prior spouses. He argued that, since Whidby had been allowed to remarry in Georgia, she must have shown proof of her divorce from him to the authorities in Georgia. Therefore, this circumstance should serve as proof that he was divorced from Whidby. He also stated — and it was not disputed — that Whidby had told Jackson she was going to file for divorce from him in Hall County, GA, in 2009.

The Johnsons, for their part, submitted an affidavit from Whidby herself, in which she admitted that although she showed a divorce certificate pertaining to her first marriage to the authorities when obtaining a marriage license in Georgia, she did not mention anything in that transaction about her marriage to Jackson, because she had no evidence of divorce from him to show. In fact, she also stated, she had filed divorce papers against Jackson in Dawson County, GA, but that case was dismissed because she was not a resident of Dawson County. The Johnsons also submitted evidence from Georgia court clerks indicating that no divorce action was filed in Hall County, but that one was filed in Dawson County and later dismissed for lack of jurisdiction over either of the parties. (The paperwork in the Dawson County filing shows “Hall” County was crossed out and “Dawson” was written in.)

The records from the Superior Court of Dawson County, which the Johnsons submitted to the court, showed that a divorce action was filed in April 2009, and a summons was issued there with the settlement agreement form. Personal service upon Jackson was made through the Autauga County Sheriff's Department on June 11, 2009. Subsequently, an Order to Show Cause why Whidby's prayers should not be granted was personally served on him on June 29, 2009. The hearing was set for July 16, 2009, but neither Whidby nor Jackson appeared. On July 22, 2009, the court dismissed the case because neither party to the divorce proceeding was a resident of Dawson County.

The court was not swayed by the fact of Whidby's third marriage, as it did not prove that there was a divorce from her second husband; it only proved that she had remarried (or attempted to do so), not that she had obtained a valid divorce decree. “Taking all evidence in a light most favorable to Jackson,” the court found, “Jackson thought he had been divorced from Whidby in Hall County, Georgia, but in fact, he and Whidby have never been lawfully divorced anywhere. There is no genuine issue of fact as to that.” This being the case, Jackson had not proven that he and Johnson had a common law marriage, there was no general dispute as to any material fact and the Johnson children were entitled to judgment as a matter of law in accordance with Fed. R. Civ. P. 56(a).

Non-Traditional Family Member Stays in Apartment

In 541 Union LLC v. Rivera, 46455/15 (May 1), a Bronx man who had lived with his long-term girlfriend for 12 years but was not married to her was deemed entitled to succeed to his deceased girlfriend's tenancy in their shared rental apartment.

After the female tenant in a rental apartment died, the landlord brought a holdover proceeding against her live-in partner, Rivera, asserting that he was a tenant of the deceased licensee and his license was revoked. Rivera sought succession rights to the tenancy.

The landlord successfully proved his prima facie case that the deceased was the only signatory of the lease and that no one else was designated in the lease or any other related document as a family member or second occupant. Rivera testified, however, that he had begun dating the deceased 18 years before her death, had lived with her in the apartment at issue for 12 years, and that they had not married only because he was married to someone else who refused to grant him a divorce. The court found Rivera's testimony credible, determining that the deceased had relied on him financially, that he had cared for her during her illness and that they had enjoyed a committed relationship during the deceased's lifetime. This being the case, Rivera proved he was the deceased's non-traditional family member, and he was entitled to succeed in the tenancy with a renewal lease in his own name. The landlord's petition was therefore dismissed.

Believing You're Divorced Does Not Make It So

A man who thought his wife had divorced him recently lost his bid to the proceeds of an insurance policy insuring his supposed common law wife, as he could not enter into a common law marriage while still married to someone else. Johnson v. Jackson, 2017 U.S. Dist. LEXIS 77012 (M.D. Ala. 5/22/17).

Cynthia Johnson was in a relationship with Earl Jackson, a truck driver. Jackson drove a truck for Phoenix Transportation, and Johnson accompanied him on his trips. Because of this, Jackson took out a rider insurance policy to cover Johnson, on which he made the premium payments. No beneficiary form was ever completed, but the policy itself declared that “[u]pon receipt of due written proof of death, payment for loss of life of an Insured will be made, in equal shares, to the survivors of the first surviving class of those that follow: the Insured's (1) spouse; (2) children … .”

Johnson died in a 2016 accident while riding in a motor vehicle being driven by Jackson. Johnson's three children (through their father) sought to collect the $200,000 proceeds of the life insurance policy. Jackson made a claim for those same proceeds, claiming he was entitled to them as Johnson's common law husband.

The elements for proving a common law marriage in Alabama are: 1) that the parties had the capacity to marry; 2) that the parties agreed to permanently enter into a marital relationship to the exclusion of all other relationships; and 3) that there was public recognition of the relationship as a marital one, to include marital duties and cohabitation of the parties. McMullins v. McMullins , 202 So. 3d 332 (Ala. Civ. App. 2016). The Johnson children moved for summary judgment on the basis that Jackson had married one Regina Lynn Whidby in Alabama in 2008, and that there was no record of divorce from Whidby in Alabama or in the two counties in Georgia to which Whidby had legal ties. Therefore, the Johnsons asserted that Jackson could not prove the first element of common law marriage in Alabama — that he had the capacity to marry. If Jackson was never legally divorced from Whidby, they argued, he could not have had a valid common law marriage to Johnson even if he lived with her for years in the belief that they had such a marriage.

The proofs offered by the parties became somewhat convoluted. Jackson pointed out that Whidby had remarried in Georgia and that the State of Georgia does not allow marriage unless a divorced party to such union first presents proof of divorce from any prior spouses. He argued that, since Whidby had been allowed to remarry in Georgia, she must have shown proof of her divorce from him to the authorities in Georgia. Therefore, this circumstance should serve as proof that he was divorced from Whidby. He also stated — and it was not disputed — that Whidby had told Jackson she was going to file for divorce from him in Hall County, GA, in 2009.

The Johnsons, for their part, submitted an affidavit from Whidby herself, in which she admitted that although she showed a divorce certificate pertaining to her first marriage to the authorities when obtaining a marriage license in Georgia, she did not mention anything in that transaction about her marriage to Jackson, because she had no evidence of divorce from him to show. In fact, she also stated, she had filed divorce papers against Jackson in Dawson County, GA, but that case was dismissed because she was not a resident of Dawson County. The Johnsons also submitted evidence from Georgia court clerks indicating that no divorce action was filed in Hall County, but that one was filed in Dawson County and later dismissed for lack of jurisdiction over either of the parties. (The paperwork in the Dawson County filing shows “Hall” County was crossed out and “Dawson” was written in.)

The records from the Superior Court of Dawson County, which the Johnsons submitted to the court, showed that a divorce action was filed in April 2009, and a summons was issued there with the settlement agreement form. Personal service upon Jackson was made through the Autauga County Sheriff's Department on June 11, 2009. Subsequently, an Order to Show Cause why Whidby's prayers should not be granted was personally served on him on June 29, 2009. The hearing was set for July 16, 2009, but neither Whidby nor Jackson appeared. On July 22, 2009, the court dismissed the case because neither party to the divorce proceeding was a resident of Dawson County.

The court was not swayed by the fact of Whidby's third marriage, as it did not prove that there was a divorce from her second husband; it only proved that she had remarried (or attempted to do so), not that she had obtained a valid divorce decree. “Taking all evidence in a light most favorable to Jackson,” the court found, “Jackson thought he had been divorced from Whidby in Hall County, Georgia, but in fact, he and Whidby have never been lawfully divorced anywhere. There is no genuine issue of fact as to that.” This being the case, Jackson had not proven that he and Johnson had a common law marriage, there was no general dispute as to any material fact and the Johnson children were entitled to judgment as a matter of law in accordance with Fed. R. Civ. P. 56(a).