COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60066 SARAH BYRUM CHAPLER : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION : JOHN K. O'TOOLE, ET AL. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT APRIL 2, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Division of Probate, Case No. 1030045 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEES: David B. Shillman George K. Simakis David B. Shillman Co., L.P.A. Fulton Plaza 720 Leader Building 4254-B Fulton Road Cleveland, Ohio 44114 Cleveland, Ohio 44144 John D. Kedzior Wegman, Hessler, Vanderburg & O'Toole 6100 Rockside Woods Boulevard Cleveland, Ohio 44131 - 1 - PRYATEL, J.: Sarah Byrum Chapler ("Byrum") timely appeals a decision of the probate court denying her status as the common law wife of the late James Chapler. Byrum filed the lawsuit to inherit under Chapler's will as his surviving spouse. Byrum raises one assignment of error: "The trial court erred in finding that plaintiff failed to establish all elements of a common law marriage by clear and convincing evidence." Upon review of the record, we affirm. Byrum met Chapler in the fall of 1983 while he was playing in a band at a tavern in Akron, Ohio. They began dating on a regular basis in late 1984. Byrum testified that in March 1985, she accepted Chapler's marriage proposal and agreed to move from Akron to his Cleveland home. In June 1986, Byrum moved in with Chapler and began working at the Little Bar & Grille, a restaurant co-owned by Chapler. Byrum's two sons eventually joined the couple in Cleveland. Byrum testified that in July 1987, she and Chapler exchanged wedding vows at home without any witnesses. The next month the couple applied for a marriage license but never picked it up. Byrum also told the court that she and Chapler later exchanged wedding rings. According to Byrum, they were planning to marry in - 2 - Las Vegas in December 1988. Chapler, however, died of an aneurysm on December 11, 1988. From June 1986 until Chapler's 1988 death, the couple lived in Chapler's home with her two sons. Byrum claimed that during this time, she and Chapler purchased Cooney's Restaurant as equal partners. The couple opened a bank account in the names of "James Chapler or Gladys Byrum" as joint tenants with rights of survivorship in February 1987. Byrum also introduced receipts for home furnishings, rings and musical instruments purchased in the names of James and Sarah Chapler. Byrum presented twelve witnesses to support her claim of a common law marriage to Chapler. For example, three repairmen, a Cooney's customer and former restaurant employees told the court that the couple referred to each other as husband and wife. William Sofer sold musical instruments to Byrum and Chapler for Byrum's sons in November 1987 and testified that the couple referred to the children as "their boys." Kelley Brionza met the couple when Brionza's boyfriend did remodeling work at Chapler's home. Brionza testified Chapler introduced Byrum as his wife. The principal at the children's school and the mother of the boys' friend also stated Chapler referred to Byrum as his wife. The defense called Michael Gilbert, an insurance agent who handled Chapler's life insurance policy since June 1985. Gilbert testified that Chapler's mother was the named beneficiary under the policy and that Chapler did not change the beneficiary or otherwise indicate he had married when the agent reviewed the - 3 - policy with Chapler in June 1987. During this meeting, Chapler introduced Byrum by name only and indicated she was "staying" with him. Another insurance agent, Dean Chelton, testified that he handled health, life and auto insurance policies for Chapler. The health insurance policy lapsed in 1987 while the auto policies remained in effect until March 1989. At no time did Chapler add Byrum to these policies in any capacity. Furthermore, Chapler's mother was the life insurance beneficiary. In April 1987, Chapler filed an auto claim for damages arising from an accident which occurred while Byrum was driving his car. The insurance records indicate that Chapler loaned his car to Byrum who is described as a tenant. The source of this information is unknown. Friends and neighbors of Chapler's testified that they were not aware of any marriage between Byrum and Chapler. Mike Pariano, who co-owned the Little Bar & Grille with Chapler until October 1986, averred Chapler never mentioned the purported marriage. Nicholas Pyros and Steve Salamalekis, who played in bands with Chapler, told the court that the deceased never introduced Byrum as his wife. Gus Katsas, a friend of Chapler's for thirty-five years and his first cousin, stated Chapler did not indicate he had married Byrum. Katsas stated his mother asked Chapler in July 1987 whether he intended to marry and Chapler replied, "Not in the near future." Chapler's sister, Helen Pariano, testified she discussed with her brother his situation with Byrum and claimed her brother denied loving Byrum. He told - 4 - his sister he was going to ask Byrum to move out. Chapler's brother-in-law, Michael Dadas, also testified that in the summers of 1987 and 1988, Chapler stated he did not intend to marry Byrum. Sally Collaros, Chapler's mother, told the court she openly disapproved of her son "cohabitating" with Byrum and claimed she told her son to marry Byrum. Chapler allegedly told his mother he did not want to marry Byrum but that Byrum was living with him because he felt sorry for her since she had no place to go with her two children. The parties presented conflicting evidence concerning the funeral arrangements for Chapler. According to Byrum, she was excluded from these arrangements by Chapler's family who always disliked her because she was not Greek. Jerry Yurich, the funeral director and a family friend, testified he attempted to include Byrum in the arrangements and, during a telephone conversation, Byrum indicated she and Chapler were not married but had intended to be. Yurich stated Byrum agreed that she be referred to as Chapler's fiancee in his obituary. Chapler was listed as never married on his death certificate. In her sole assignment of error Byrum asserts the probate court erred in finding she was not Chapler's common law wife. - 5 - A judgment supported by some competent, credible evidence shall not be a reversed as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. Further, the weight to be given the evidence and the assessment of witness credibility is within the purview of the trier of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 81. In Nestor v. Nestor (1984), 15 Ohio St. 3d 143, 146, the Supreme Court held: "The fundamental requirement to establish the existence of a common law marriage is a meeting of the minds between the parties who enter into a mutual contract to presently take each other as man and wife. The agreement to marry in praesenti is the essential element of a common law marriage. Its absence precludes the establishment of such a relationship even though the parties live together and openly engage in cohabitation. Although cohabitation and reputation are necessary elements of a common law marriage, this court has previously held that standing alone they do not constitute a common law marriage. In re Redman (1939), 135 Ohio St. 554 [29 O.O. 143]. (Emphasis original). "*** "Where there is direct evidence concerning the formation of the contract of marriage in praesenti and a finding by the court, as here, that such a contract exists, the evidence of long-time cohabitation and reputation of living together as man and wife should be given even greater weight to further strengthen the inference of marriage. (Emphasis original). "*** "As to the element surrounding the reputation of the parties in the community as being man and wife, in order to establish a common law marriage it is not necessary that they disseminate information to all society generally, or to all of the community in which they reside. Rather, there must be a holding out to those with whom they normally come in contact. A common law marriage will not necessarily be - 6 - defeated by the fact that all persons in the community within which the parties reside are not aware of the marital arrangement, nor by the fact that all persons with whom they normally come in contact are also unaware of the arrangement." Common law marriage must be established by clear and convincing evidence. Id. Finally, such marriages are not favored in Ohio. Id. at 145. The record contains competent, credible evidence to support the probate court's decision. Although Byrum introduced evidence that in business dealings concerning Cooney's Restaurant and in some matters regarding Byrum's sons the couple presented themselves as husband and wife, the defense presented ample evidence that Chapler's close friends, family and the couple's neighbors did not know of the purported marriage. Further, Chapler never changed any insurance policies to include Byrum as his wife and he continued his mother as the beneficiary under his life insurance policies. Chapler held the house in his name only and the record demonstrates Byrum witnessed the deed in August 1986, after the private "marriage" ceremony, under her maiden name. Byrum also admitted she and Chapler applied for a marriage license in August 1986 and intended to marry in Las Vegas in December 1988. Chapler's sister and brother-in-law testified Chapler indicated he did not intend to marry Byrum and the brother-in-law averred that Chapler introduced Byrum as a "friend" at a September 1988 party. Finally, funeral director - 7 - Yurich told the court that Byrum indicated she and Chapler were not married and that Byrum consented to the obituary which referred to her as Chapler's fiancee. In light of the record, we sustain the finding of the probate court that the evidence was not clear and convincing that Byrum was the common law wife of Chapler. Accordingly, the assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellees recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, PRESIDING JUDGE JAMES D. SWEENEY, J., CONCUR. JUDGE *AUGUST PRYATEL *(Sitting by assignment: Judge August Pryatel, retired from the Eighth District Court of Appeals). N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .