Allen v. Allen , 738 P.2d 142 ( 1987 )

HODGES, Justice.

This appeal arises from a decision declaring appellee to be the surviving spouse of the decedent and thereby entitled to participate in the estate of the decedent. The deceased, Jack Marvin Allen, Sr., married Wilda Jean (Sutton) Allen (appellee) in January of 1965. Three years later, the couple divorced. On September 28, 1969, Jack Allen and appellee remarried. A petition for divorce was filed in June of 1971, but the petition was later dismissed and no decree was entered. The parties, however, remained permanently separated.

In June of 1977, appellee entered into a cohabitating relationship with Garland Gould which resulted in the birth of four children. Garland Gould filed a petition for divorce in Blaine County and sought custody of the children. Appellee answered the petition as Wilda Jean Gould, admitted the existence of the common law marriage and requested the custody of the children. The Blaine County District Court found a common law marriage existed and entered a decree of divorce.

On September 13, 1979, Jack Allen married Flossie Drake. The marriage produced no children and ended in 1983 with the suicide death of Flossie Drake. Approximately a year later, Jack Allen died testate leaving the entire estate to Larry Allen (appellant), his surviving son from a prior marriage. Appellant son was named executor in decedent’s will. Subsequently, ap-pellee petitioned for letters of administration and appointment as personal representative of the estate as the surviving spouse of decedent. Appellant also petitioned the court to issue letters testamentary to him.

The trial court found the marriage between Jack and Wilda Allen had not been dissolved by a valid divorce or legal separation, and, therefore, Wilda is the surviving spouse of Jack Allen and entitled to her statutory share under his estate. The Court of Appeals affirmed holding:

“The cohabitation between appellee and Mr. Gould could not generate a common law marriage if she were not divorced from Decedent. The law in Oklahoma does not recognize such a thing as a common divorce.”

The particular facts of this case warrant a refusal of appellee’s statutory share in the decedent’s estate based on the doctrine of estoppel. Estoppel is a bar raised by the law which precludes one from alleging or from denying a certain fact or state of facts in consequence of the previous allegation, denial, conduct, or admission or in consequence of a final adjudication of the matter by a court of law. Wisel v. Terkune, 201 Okl. 231, 204 P.2d 286, 290 (1949). In this case, appellee claims to be the surviving spouse of Jack Allen because no divorce was ever decreed. However, her conduct precludes the assertion of her status as decedent’s wife and her right to his estate. Approximately six years after her separation from decedent, she voluntarily entered into cohabitation with Garland Gould. She never asserted the existence of her prior marriage. However, she continued the relationship with Gould which resulted in the birth of four children. When Gould filed for divorce, appellee admitted the existence of their common law marriage. The Blaine County District Court found the existence of such a marriage and entered a decree of divorce. The decree was issued in 1983. After hearing of the decedent’s death in 1984, she immediately claimed her marital status to the decedent even though she had remained silent for approximately thirteen years.

In this regard we find our recent decision in Tatum v. Tatum, 53 OBJ 1197, May 15, 1982, reh’g denied May 27, 1987, 736 P.2d 506 (Okla.1987), to be instructive. In that case the first wife claimed to occupy the status of the surviving spouse under the workers’ compensation law although she was living alone at the time of her husband’s death by reason of desertion. This Court rejected the contention raised by the second wife of a subsequent common law marriage that the first wife lost her status as a deserted spouse by inaction and non-pursuit. We affirmed the trial court’s finding that the first wife was the decedent’s deserted spousal survivor entitled by statute to benefits. We did, however, state affirmative acts may indicate a change in character of the marriage relationship and that such legal change could manifest itself through some outward recognition that the relationship had terminated. We noted affirmative acts which might be recognized as changing the legal status such as suing for divorce or separate maintenance, active resistance to reconciliation efforts or cohabitation with another. Such indicia were found absent in that case.

The predicate facts in this case constitute affirmative acts which give rise to a legal change in appellee’s marital relationship with decedent. In particular, appellee’s cohabitation with Gould and her affirmative recognition of her subsequent common law marriage to Gould. We therefore find ap-pellee’s prior assertion of legal status and judicial finding and decree from which there was no appeal operates as a bar to her later inconsistent claim. Hill v. Shreve, 448 P.2d 848 (Okla.1968); Marcum v. Zaring, 406 P.2d 970 (Okla.1965); Norton v. Coffield, 357 P.2d 434 (Okla.1960).

In Darrough v. Davis, 135 Okl. 263, 275 P. 309 (1929), this Court held the plaintiff was estopped from asserting his status as decedent’s surviving spouse which would have allowed him to participate in the estate. The plaintiff had abandoned his wife without obtaining a divorce, and subsequently entered into another marriage. Of this marriage two children were born and were being raised by the plaintiff and his wife. After his former wife died, plaintiff immediately announced he had never received a divorce from his former wife, and as her surviving spouse, he was entitled to participate in her estate. This Court found the fact that he remained silent for a long period of time, even during his present marriage, estopped him from claiming an interest in the estate. This Court described the theory of estoppel as, “If you do not speak when you ought to speak, you shall not speak when you want to speak.”

Given the facts in this case, appellee is estopped from asserting her continual marital status with the decedent. Appellee had the opportunity for thirteen years to assert her relationship with the decedent, but declined to do so until the decedent’s death. She cannot “speak” now after she has been silent for so long.

Estoppel is a doctrine that may be used to prevent injustice. Cf. Cleveland Trust v. State, Hunt, 555 P.2d 594, 596 (Okla.1976). If this Court decided to allow appellee to participate in the decedent’s estate, this would prejudice those who are rightly entitled to share in the estate. Because of her previous conduct, appellee should have no right to share in the estate.

In conclusion, we find the Court of Appeals erred in affirming the trial court’s decision. This Court in Darrough, supra, said before the plaintiff could claim an interest in the estate, it was essential for him to establish the lack of a divorce and the voidness and illegality of his second marriage. However, this Court found this would produce a condition that has support neither in equity, good morals, settled law or public policy. Therefore, based on the doctrine of estoppel and considerations of public policy, appellee is estopped from asserting her status as surviving spouse.

We accordingly VACATE the order of the Court of Appeals, REVERSE the judgment of the trial court and the cause is REMANDED for further proceedings consistent with this opinion.

LAVENDER, SIMMS, OPALA, WILSON and SUMMERS, JJ., concur. HARGRAVE, V.C.J., concurs in result. DOOLIN, C.J., and KAUGER, J., dissent.