COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68368 MARY ANN MAMICK : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION STEVEN M. MAMICK, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 7, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE PROBATE COURT CASE NO. 1091355 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JOHN T. PRICE (#0022744) 1420 STANDARD BUILDING CLEVELAND, OHIO 44113 For Defendants-Appellees: ANTHONY STRINGER (#0012649) STRINGER, STRINGER & GASIOR 14701 DETROIT AVENUE - SUITE 532 LAKEWOOD, OHIO 44107 - 2 - 2 SPELLACY, P.J.: Mary Ann Mamick appeals from the probate court's declaratory judgment that no common-law marriage existed between her and Robert Mamick ("Bob"). Mary Ann raises the following assignment of error: THE TRIAL COURT COMMITTED REVERSIBLE PREJUDI- CIAL ERROR BY SUSTAINING THE DEFENDANT- APPELLEE'S OBJECTIONS TO THE REPORT OF THE REFEREE, THEREUPON RULING THAT THE PLAINTIFF BELOW HAD FAILED TO PROVE THE ELEMENTS OF A COMMON LAW MARRIAGE BY CLEAR AND CONVINCING EVIDENCE WITH THE RESULT THAT APPELLANT WAS DEEMED NOT TO BE THE SURVIVING SPOUSE OF ROBERT S. MAMICK, DECEASED, A DECISION AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. I. The matter was heard before a referee where the following evidence was adduced: In 1972 Bob and Mary Ann married. In 1975 their son Jimmy was born. In 1980 Bob purchased a restaurant and gas station complex in Medina, Ohio, and the family began living in an apartment over the restaurant. In 1988 Bob and Mary Ann divorced. Mary Ann and Jimmy then moved to a condominium in Parma, Ohio, and Bob stayed in the apartment above the restaurant. Sometime between December 1990 and March 1991, Bob sold the restaurant, retaining the gas station, and moved in with Mary Ann and Jimmy. In March 1991, an order requiring Bob to pay child support was terminated based on a joint affidavit in which Bob and Mary Ann averred that they were living as a family unit. During this period Mary Ann submitted several financial aid applications to Jimmy's private high school stating that she was divorced. She also filed tax returns stating that she - 3 - 3 was single and when she refinanced the mortgage on her condominium she indicated on the deed that she was unmarried. In May 1993 Bob died after suffering a heart attack. Steve Mamick and Cheryl Krueger, Bob's son and daughter from a previous marriage, along with Bill Krueger, Cheryl's husband, testified that on the night Bob died Mary Ann told hospital staff members, the surgeon who informed them that Bob was dying, and the surgeon who spoke to them after Bob's death, that she was Bob's ex-wife. Steve also testified that while they were at the hospital Mary Ann stated that Bob owed her $40,000 and asked whether she was ever going to collect it. Mary Ann testified that she told hospital staff members she was Bob's wife and introduced herself as "Mrs. Mamick" to the surgeons. Roberta Fisher, Mary Ann's aunt, testified that after Bob moved back in with Mary Ann, it was as if they never divorced. She further testified that Bob and Mary Ann referred to themselves as husband and wife. Joanne Bell, a long-time friend of Mary Ann and Bob's, testified that in early spring 1993 Mary Ann referred to Bob as her husband. Will Campbell, who works with Mary Ann, testified that the first time he met Bob was when he had gone to meet him in a bar and that when he asked whether Bob was Mary Ann's husband, Bob answered in the affirmative. He also testified that when Bob and Mary Ann met his children, Mary Ann introduced Bob as her husband. William Murray, who had known Bob for over twenty-five years, testified that in either 1990 or 1991 Bob referred to Mary - 4 - 4 Ann as his "old lady." Murray testified that he had been unaware that Bob and Mary Ann had been divorced or lived apart. Douglas Sage testified that during the summer he saw Bob almost weekly at their boats on Lake Erie. Sage testified that he was unaware that Bob and Mary Ann had been divorced and was only vaguely aware of their separation. Patricia Rau, a close friend of Mary Ann's, testified that when Bob moved back in with Mary Ann they went back to living as husband and wife. Rau testified that when she wrote them she addressed the envelope to "Mr. and Mrs. Mamick." Pat Larcicci, a friend of Mary Ann's who saw her once or twice a week, testified that everyone thought Bob and Mary Ann were married. Stanley Parks, who often boated with Bob, testified that he considered Bob and Mary Ann to be married. Jim Callahan, an insurance agent who works with Steve, handled a commercial insurance policy for Bob in May 1991. Callahan testi- fied that Bob indicated on the insurance application that he was unmarried. Callahan further testified that when he delivered the policy in July 1991, Bob asked about automobile coverage and responded to questions about future marriage plans with a "hell no." Callahan went on to testify that he saw Bob socially several times and Bob had stated that he was never marrying the "bitch," meaning Mary Ann. Ralph DeVore, the co-owner of Bob's boat, testified that two weeks before moving in with Mary Ann, Bob told him that he was not going to get married. Charles Farren, a friend of Bob's, testified that Bob once told him that he would never - 5 - 5 marry again. Farren could not remember whether Bob made this statement before or after moving in with Mary Ann. Farren's son also testified that Bob had stated he was never going to marry again. Betty Cantrell, who works at the gas station, testified that when Bob moved back in with Mary Ann, she asked him whether they were going to get married again and he replied "nope." Cantrell further testified that shortly before his death, Bob told her that he had to get out of Mary Ann's condominium. Mary Ann testified that ownership of the restaurant led to their divorce and that she had agreed to let Bob move back in if he sold it. She further testified that after Bob sold the restaurant they reconciled and considered themselves married. She stated that they did not remarry because Bob hated ceremonies and never accepted the divorce anyway. In June 1991 Bob and Mary Ann opened a joint checking account. Jimmy's report cards and mail from church were addressed to "Mr. and Mrs. Mamick." Jimmy testified that Bob and Mary Ann did not remarry because Bob felt a ceremony was unnecessary and too technical. He also testified that Mary Ann paid for the groceries while Bob paid the mortgage and other expenses. He went on to state that Bob and Mary Ann's Christmas cards were addressed to "Mr. and Mrs. Mamick" and that in 1992 Mary Ann introduced Bob as her husband. Steve testified that Bob had considered moving in with him but that he moved in with Mary Ann instead because she had agreed not to require him to pay child support if he moved in with her. Steve - 6 - 6 further testified that Bob had implied that he was dating other women. Steve stated that Bob told him that he was never going to marry again because he was a two-time loser and he was never going to get a third strike. Steve went on to state that in October 1991 Bob listed himself as unmarried on a health-insurance form. Steve further stated that Mary Ann had often stated that the divorce was saving money with Jimmy's schooling. Cheryl testified that in September 1992 Bob introduced Mary as his ex-wife and that Mary Ann often stated that she received financial aid for Jimmy because of the divorce. Cheryl went on to testify that she feels that Bob was waiting for Jimmy to graduate from high school before moving out. Linda testified that Bob moved in with Mary Ann for Jimmy's sake and was unhappy about the situation. She also testified that Bob considered himself divorced and introduced Mary Ann as his ex- wife. II. In her assignment of error, Mary Ann contends the probate court's decision that she was not Bob's common-law wife is against the manifest weight of the evidence. "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, syllabus; Season's Coal Co. v. Cleveland - 7 - 7 (1984), 10 Ohio St.3d 77, 80. Evidence susceptible to more than one interpretation must be construed consistently with the judgment. Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, 226. In Nestor v. Nestor (1984), 15 Ohio St.3d 143, 146, the court 1 held that : Clear and convincing evidence is that measure degree of proof which is more than a mere "preponderance of the evidence," but not to the extent of such certainty as is required "beyond a reasonable doubt" in criminal cases, and which will produce in the mind of the trier of facts a firm belief or convic- tion as to the factssought to be established. See, also, Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St.3d 121, 122. Reviewing the evidence, we find that the probate court's judg- ment is not against the manifest weight of the evidence. Accordingly, Mary Ann's assignment of error is not well taken. Judgment affirmed. 1 Although R.C. 3109.12(B)(1) prohibits the creation of common-law marriages, common-law marriages created before October 10, 1991, the effective date of the statute, are still recognized. See R.C. 3103.12(B)(3). - 8 - 8 It is ordered that appellees recover of appellant their 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 Probate 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. JAMES D. SWEENEY, J. and JOSEPH J. NAHRA, J., CONCUR. LEO M. SPELLACY PRESIDING JUDGE 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 .