## Facts

- Richard O. Driscoll filed an action alleging Robin L. (Anderson) Driscoll was his common-law wife, seeking a divorce and custody of a minor child born during their relationship.
- Robin denied any common-law marriage, used the surname Anderson in her pleadings, and sought divorce-related relief only if a marriage were found.
- The parties cohabited in Wichita; Richard was 36 at trial and Robin was 18 when they began living together.
- Richard testified that they formed a marriage agreement after a private conversation in June 1972 and thereafter considered themselves married.
- Richard relied on conduct he said showed marriage, including placing wedding/engagement rings on Robin, mutual use of “old man/old lady,” an introduction as husband and wife to a prospective landlady, birth announcements listing him as the father, and alleged representations to hospital staff that he was the husband.
- Robin disputed Richard’s account, testified there was no mutual present agreement to marry, and denied that they held themselves out publicly as married; she described some conduct as intended to avoid embarrassment rather than to express marital status.
- Separate juvenile proceedings resulted in a finding that the child was dependent and neglected; the juvenile court assumed jurisdiction and placed the child in foster care.

## Issues

1. Whether the evidence required a finding that the parties entered a common-law marriage under Kansas law.
2. Whether the district court erred by refusing to conduct a further custody hearing in the divorce action when a juvenile court had already taken dependency jurisdiction over the child.

## Decision

- The Kansas Supreme Court affirmed the district court’s judgment.
- The court held substantial evidence supported the finding that Richard failed to prove a common-law marriage.
- The court held the district court did not abuse its discretion in denying a further custody hearing because juvenile-court dependency jurisdiction precluded custody jurisdiction in the divorce action.

## Legal Principles

- A Kansas common-law marriage requires: (1) capacity to marry, (2) a present agreement to be married, and (3) holding out to the public as husband and wife.
- The party asserting a common-law (consensual) marriage bears the burden of proving it as a fact.
- Appellate review does not reweigh credibility determinations when substantial evidence supports the trial court’s factual finding on the existence of a common-law marriage.
- When a juvenile court properly finds a child to be dependent and neglected and acquires jurisdiction, that jurisdiction precludes a district court from exercising custody jurisdiction that it might otherwise have in a divorce action.

## Conclusion

The court upheld the trial court’s determination that the alleged husband did not meet his burden to prove a present marital agreement and public holding out sufficient for a common-law marriage, and it further held that existing juvenile-court dependency jurisdiction barred the divorce court from conducting a further custody hearing for the child.


Driscoll v. Driscoll, 552 P.2d 629 (Kan. 1976)