State ex rel. Bailey v. Powers
This text of 1977 OK 134 (State ex rel. Bailey v. Powers) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
This is an appeal from a directed verdict of not guilty in a paternity suit based on the complaining witness’ admission that a common law marriage existed between the parties.
A complaint of paternity was filed, pursuant to 10 O.S.1974 Supp. § 71, by appellant, Landra Jean Bailey a/k/a Landra Jean Powers, by and through the State of Oklahoma, against Donald Lee Powers, the appellee. The complaint alleged that: on or about February 8, 1975, the appellant became pregnant; a child was born alive and out of wedlock on November 20, 1975; and that appellee is the father of the child.
On June 21, 1976, a jury was empaneled to hear the matter and the State called the appellant as its first witness. Before the State had the opportunity to complete direct examination of the appellant, the trial court allowed the appellee to voir dire the witness. Thereafter, the trial court directed the jury to enter a verdict of “not guilty,” based upon its finding that the appellant testified that she and the appellee held themselves out as husband and wife during the time they lived together,1 which the trial court held was in direct conflict with the affidavit in the complaint of paternity.
The appellant alleges that the appellant’s mere testimony as to the possibility of a common law marriage does not constitute a common law marriage in the absence of evidence of a positive mutual intent to enter into a marriage relationship. It is, therefore, argued that because the record is void of any testimony by appellee holding himself out as the husband of the appellant, a common law relationship has not been established. It is contended the trial court erred in not allowing the appellant the op[456]*456portunity to present its evidence in its entirety as provided by 12 O.S.1971 § 577(3).2
Appellee argues that the prosecutrix could not in good faith initiate the action because she could not and did not truthfully swear to the truthfulness of the affidavit, i. e., that she and appellee were unmarried.3
The sole purpose of the paternity statutes is to provide a judicial forum for a woman who has delivered a child out of wedlock. Common law marriages are recognized in Oklahoma.4 Because the prosecutrix asserted and admitted, under oath, that she was married to the appellee when the child was conceived, we must agree that she could not institute the paternity action in good faith, and that her proper forum is in the divorce court.
The Legislature has recently enacted a statute to provide for the situation which is presented to us. Although it was not effective at the time of trial, it would govern any further disposition of this matter. It is provided by 12 O.S.1976 Supp. § 1277.2:
In an action for a divorce, legal separation or annulment where there are children born to the parties, the court may determine if the parties to the action are the parents of the children, although the court finds that the parties are not married; and if the parties to the action are the parents of the children, the court may determine which party should have custody of said children, and it may award child support to the parent to whom it awards custody, and make an appropriate order for payment of costs and attorney’s fees.
AFFIRMED.
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Cite This Page — Counsel Stack
1977 OK 134, 566 P.2d 454, 1977 Okla. LEXIS 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-bailey-v-powers-okla-1977.