ALMA WILSON, Justice:
There are two issues in this case: whether the trial court erred in finding that the appellant failed to prove that the parties had entered into a common law marriage; and whether the trial court erred in placing
Although disputed, the record supports the following facts. In 1982, the appellant, Robert John Walling, then twenty-nine years old, moved the appellee, fifteen-year-old
Walling began an affair with Long's mother. Her mother was caring for the Long's daughter and while Long was away from her mother's home, in August 1985, the mother gave her granddaughter to Walling. Long attempted to visit with her children, but Walling resisted, beating her and causing her to fear him. In October 1986, Long got her first full-time job at a thrift store. She married Patrick Mueggenborg in December 1986. In November 1987, Walling returned the children to their mother, Julie Long. But within a few weeks, Long's mother took the children for a visit with Walling and he refused to allow them to return home. Walling admitted that he told Long to go to court to get visitation.
In May 1988, Long filed suit to gain custody of her children and to legally determine their paternity. In his answer, Walling asked for a divorce claiming that he and Long had entered into a common law marriage. The trial court determined that no common law marriage existed; that the daughter was not the child of Walling; and that custody of Long's two children should be placed with her. The Court of Appeals reversed and remanded. We have previously granted certiorari.
Rath v. Maness, 470 P.2d 1011, 1013 (Okla. 1970), holds:
The standard of appellate review is stated in Daniels v. Mohon, 350 P.2d 932 (Okla. 1960). This Court held that where evidence is conflicting concerning the existence of a common law marriage, the trial court's judgment that no common law marriage had been effected would not be disturbed where such finding was not clearly
The trial transcript reveals that the trial judge stated that he could not find any evidence of a common law marriage. At the hearing, Long consistently denied she was married to Walling. Although she testified that Walling had told her that he had been married before to Susan Smith, the alleged prior marriage was not mentioned by the trial court as persuasive to its judgment. The trial court found that Long was underage at the time Walling claimed that they had agreed to be married. Although Walling had introduced Long as his wife, Walling admitted that in 1987 he filed his income tax return as single. Walling had the burden of proving the common law marriage by clear and convincing evidence. Rath, 470 P.2d at 1013. The trial court findings indicate that he believed that the elements of competence and mutuality of agreement, requirements to validate a common law marriage as listed in Rath, were missing and therefore no common law marriage could exist. Although the evidence is conflicting concerning the existence of a common law marriage between Long and Walling, the finding of the trial court is not clearly against the weight of that evidence.
Walling additionally appeals the award of custody of the two children to Long. Custody contests are of equitable cognizance and while an appellate court may examine and weigh the evidence, the findings and decree of the trial court cannot be disturbed unless found to be against the clear weight of the evidence. Carpenter v. Carpenter, 645 P.2d 476, 480 (Okla. 1982). Much of Walling's argument is based upon the false assumption that a common law marriage existed between the parties and the law cited in his brief applies to married parties. Although evidence was presented that Walling was the primary caretaker of the children during most of their lives, evidence was also presented that the children were left with Walling through his use of intimidation, deceit and physical force. The trial court is entitled to choose which testimony to believe as the judge has the advantage over this Court in observing the behavior and demeanor of the witnesses. The court's judgment need not rest upon uncontradicted evidence. Carpenter, 645 P.2d at 480.
Concerning the daughter, the trial court found that no common law marriage existed and that the genetic evidence provided to the court by the Sylvan N. Goldman Center Oklahoma Blood Institute, revealed that Walling was excluded as the biological father of the young girl. "The mother of an illegitimate unmarried minor is entitled to its custody, services and earnings." 10 O.S. 1991, § 6, Plunkett v. Atkins, 371 P.2d 727, 729-730 (Okla. 1962). The trial court properly granted custody to the mother.
Concerning the son born to Long and Walling, Walling argues that the trial court was predisposed to keeping the children together even though such would not be in the best interests of their son. Long answers with a citation from the trial transcript revealing that the trial court stated that it would place custody where the children would be best suited even if the result were separating the children. The law requires that the best interest of the child be the paramount consideration of the trial court. Rice v. Rice, 603 P.2d 1125, 1128 (Okla. 1979). "The court's decision is presumed to include a finding favorable to the successful party upon every fact necessary to support it." Carpenter, 645 P.2d at 480. We presume that the trial court considered the best interests of the son of the parties, even though the court did not expressly
CERTIORARI PREVIOUSLY GRANTED. OPINION OF THE COURT OF APPEALS VACATED. JUDGMENT OF THE TRIAL COURT AFFIRMED.
OPALA, C.J., and KAUGER, SUMMERS and WATT, JJ., concur.
HODGES, V.C.J., and LAVENDER, SIMMS and HARGRAVE, JJ., dissent.
OPALA, Chief Justice, concurring.
The court upholds today the nisi prius ruling that the parties to this appeal had not entered into a common-law marital relationship.
Common-law marriage has roots as far back as the 12th Century canon law.
Scattered cases that regard cohabitation as a prerequisite for a consensual non-ceremonial marriage
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.
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.
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:
While this may serve as some explanation of the discrepancy in the cases, cohabitation is not an issue in the case at bar.
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: