Johnson et al v. Jackson
MEMORANDUM OPINION AND ORDER: it is hereby ORDERED as follows: 1. The Motion to Strike is GRANTED as to statements relayed by court clerks in Andrea Hatchcock's affidavit and is DENIED as to statements within Andrea Hatchcock's personal kno wledge. 2. The Motion for Summary Judgment is GRANTED to the Plaintiffs on the issue of Jackson's capacity to enter into a common law marriage with the Decedent. 3. A separate Judgment will be entered in accordance with this Memorandum Opinion and Order. Signed by Honorable Judge W. Harold Albritton, III on 5/22/2017. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
BRITTANY JOHNSON, JONATHAN
JOHNSON, AND AUSTIN JOHNSON
Civil Action No. 2:17cv4-WHA
MEMORANDUM OPINION AND ORDER
This case is before the court on a Motion for Summary Judgment (Doc. #29), filed by the
Plaintiffs and a Motion to Strike the Affidavit of Andrea Hatchcock filed by the Defendant (Doc.
This case was originally filed as an interpleader action. The insurance company, National
Union Fire Insurance Company of Pittsburgh, PA, paid insurance policy proceeds into court, and
sought the court’s determination as to competing claims. The court discharged the insurance
company and realigned the parties.
The re-aligned Plaintiffs have moved for summary judgment. The Defendant moves to
strike one affidavit upon which the Motion for Summary Judgment is based.
For the reasons to be discussed, the Motion to Strike is due to be GRANTED in part and
DENIED in part and the Motion for Summary Judgment is due to be GRANTED.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if there is no genuine issue as to any material fact and
. the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
The party asking for summary judgment "always bears the initial responsibility of
informing the district court of the basis for its motion,@ relying on submissions Awhich it believes
demonstrate the absence of a genuine issue of material fact." Id. at 323. Once the moving party
has met its burden, the nonmoving party must Ago beyond the pleadings@ and show that there is a
genuine issue for trial. Id. at 324.
Both the party Aasserting that a fact cannot be,@ and a party asserting that a fact is
genuinely disputed, must support their assertions by Aciting to particular parts of materials in the
record,@ or by Ashowing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.@ Fed. R. Civ. P. 56 (c)(1)(A),(B). Acceptable materials under Rule 56(c)(1)(A) include
Adepositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
To avoid summary judgment, the nonmoving party "must do more than show that there is
some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
The submissions of the parties establish the following facts, construed in a light most
favorable to the non-movant:
Cynthia Johnson (“the Decedent”) was insured under National Union Fire Insurance
Company of Pittsburgh, PA (“National Union”) Policy Number SRG-000914074-A (“the
Policy”) issued by National Union to Phenix Transportation West, Inc. (“Phenix
In 2014, the Decedent was in a relationship with Defendant Earl Jackson (“Jackson”).
Jackson worked for Phenix Transportation. During the course of their relationship, the Decedent
traveled with Jackson while he drove for Phenix Transportation. Jackson took out the Rider
Insurance Policy covering the Decedent while she was a passenger in Jackson’s vehicle, and paid
the premiums on the Policy. No beneficiary form was completed. The Policy provided as
follows: “Upon receipt of due written proof of death, payment for loss of life of an Insured will
be made, in equal shares, to the survivors of the first surviving class of those that follow: the
Insured’s (1) spouse; (2) children . . . .” (Doc. #1-1 at p.10).
Plaintiffs Brittany Johnson, Jonathan Johnson, and Austin Johnson (“the Johnsons”) are
children of the Decedent. When the Decedent was killed in 2016 as a result of a motor vehicle
accident in which she was a passenger in the vehicle being drive by Jackson, $200,000 became
payable under the Policy. Robert Schwartz, the father of the Decedent, made a claim on behalf of
the Johnsons. Jackson also made a claim on the Policy as the Decedent’s common law husband.
It is the status of Jackson as the Decedent’s common law husband which is at issue.
Relevant to that status are the facts of Jackson’s previous relationship with Regina Lynn Whidby
(“Whidby”). Jackson married Whidby in Autauga County, Alabama in 2008, before Jackson’s
relationship with the Decedent. The Johnsons claim that there is no record of a divorce filed for
Jackson and Whidby in Alabama, where they lived together during their marriage, or in Georgia,
where Whidby lived once Whidby and Jackson no longer lived together.
The Johnsons have submitted evidence to support that no record of divorce has been
located in Alabama or in two counties in Georgia.
The Johnsons have moved for summary judgment on the basis that Jackson cannot prove
the first element a common law marriage to the Decedent. A finding of common law marriage
requires a showing through clear and convincing evidence that the (1) the person had the
capacity to marry, (2) a present, mutual agreement to permanently enter the marriage relationship
to the exclusion of all other relationships, (3) public recognition of the relationship as a marriage
and public assumption of marital duties and cohabitation. McMullins v. McMullins, 202 So. 3d
332 (Ala. Civ. App. 2016). If Jackson was never legally divorced from Whidby, he could not
have had a valid common law marriage to the Decedent, no matter the circumstances of their
The Johnsons argue that Jackson was legally married to Regina Whidby (“Whidby”) at
the time of his relationship with the Decedent and, therefore, lacked the capacity to marry the
Decedent. When their motion first was filed, the Plaintiffs presented evidence in the form of an
affidavit from an investigator that there is no record of a divorce of Jackson and Whidby in
Alabama (Doc. #29-3 at p.2), and a Certificate of Failure to Find which states that no record of
divorce was found to exist in Alabama. (Doc. #29-2).
Jackson contends that this evidence does not conclusively show that he was married to
Whidby during the time of his relationship with the Decedent because there is evidence that he
was divorced from Whidby. He states in an affidavit that he and Whidby agreed to divorce and
filled out divorce paperwork. Jackson also presents evidence that Whidby married Eric Scott
Turpin (“Turpin”) on June 27, 2009 in Georgia. Jackson presents an affidavit from an attorney
who states that under Georgia law, applicants for marriage must produce evidence of all prior
divorces and must produce a copy of a final decree of divorce signed by a Judge. (Doc. #33-1).
Therefore, Jackson has argued, the fact that Whidby was allowed to marry Turpin in Georgia is
evidence that she was divorced from Jackson at the time she married Turpin. Jackson also has
argued that a marriage is presumed to have been dissolved by divorce, citing Leonard v.
Leonard, 560 So. 2d 1080 (Ala. Civ. App. 1990), and that the Johnsons’ evidence does not
overcome that presumption.
In further support of their motion, the Johnsons subsequently presented two pieces of
evidence, to which the court gave Jackson additional time in which to file a response. In the
additional evidence, specifically an affidavit from Whidby, Whidby states that when she filled
out the marriage license application for her marriage to Eric Turpin, she indicated on the
application that she had previously been married to and divorced from Michael Whidby, and
produced a divorce certificate from her marriage to Michael Whidby. (Doc. #36-1 at p.2). She
states that she did not produce a divorce from her marriage to Jackson because she had no such
evidence. (Doc. #36-1). Whidby also states that she filed divorce papers in Dawson County,
Georgia, but the case was dismissed because she did not live in that county. (Doc. #36-1).
The other evidence newly submitted by the Plaintiffs is an affidavit of Andrea Hatchcock
(“Hatchcock”), which is the subject of the Motion to Strike. Jackson contends that the court
should strike Hatchcock’s statements that relay her phone conversations with court clerks. In
response, the Plaintiffs have submitted affidavits of the court clerks. Therefore, to the extent that
Hatchcock’s affidavit relays information she learned from court clerks, the Motion to Strike is
due to be GRANTED. The court will only consider Hatchcock’s affidavit statements to the
extent that they are within her personal knowledge.
The affidavits of the Clerks establish that there is no record of divorce between Whidby
and Jackson in the relevant counties in Georgia. The Clerk of the Superior Court of Dawson
County, Georgia states in his affidavit that the only file located for Whidby and Jackson was one
in which a divorce case was dismissed because it was not properly before the court. (Doc. #412). The Deputy Clerk of the Superior Court of Hall County, Georgia states in her affidavit that
she did not locate any record in Hall County, Georgia of a record of divorce, a divorce action, or
any decree of divorce between Whidby and Jackson (Doc. #41-1).
Jackson says that Whidby told him that she was going to file divorce papers in Hall
County, Georgia directly after meeting with him in Gainesville, Ga. (Doc. #33-1, ¶14). That is
accepted as true. Whidby says that she actually filed the papers in Dawson County, and did not
file them in Hall County. (Doc. #36-1, at p.2). That is also accepted as true, so the evidence
shows that Whidby told Jackson she would filed in Hall County but actually did not. This
conclusion is also established by the documents before the court.
The records from the Superior Court of Dawson County, attached to the Affidavit of
Clerk (Doc. #41-2) show the following:
On February 25, 2009, Whidby filled out a Hall County form Petition for Divorce from
Jackson, with a verification before a notary public in Hall County. On the same day she signed a
form Settlement Agreement, and an Agreement to Try, sworn to before the same notary public,
but there was no signature by Jackson in the places provided for Signature of Husband. Also, on
that day Whidby signed a Certificate of Service by mail form.
None of these documents are contained in the records of the Superior County of Hall
County. They are, however, in the records of the Superior Court of Dawson County, shown as
being filed there on April 29, 2009. The Hall County Petition for Divorce form shows that
“Hall” was stricken through and “Dawson” written in at the top. Also, on April 29, 2009 a
Summons was issued there with the Settlement Agreement form, and an Agreement to Try
signed by Whidby, but with the place for Signature of Husband marked out and “Sheriff’s
Service” written in. On the same day a Domestic Relations Actions Standing Order was entered
in Dawson County, with a Certificate of Service showing service by mail to Whidby and to
Jackson c/o Autauga County Sheriff’s Department, Prattville, Alabama, and a Rule Nisi
Scheduling Hearing in Domestic Case set a hearing for June 18, 2009. The records show that the
Autauga County Sheriff’s Department received the documents for service on Jackson on May 4,
2009, and a Sheriff’s Entry of Service was filed in the Dawson County court on June 15, 2009,
showing that Jackson had been personally served on June 11, 2009. They further show that on
June 23, 2009 the Superior Court judge in Dawson County entered a Rule Nisi to Jackson to
show cause before him on July 16, 2009 why the prayers of Whidby should not be granted. The
Rule Nisi was served on Jackson c/o Autauga County Jail on June 29, 2009. The records do not
show an appearance by either Whidby or Jackson in court on July 16.
Finally, on July 22, 2009, the court entered an Order Dismissing the case as not properly
before the Court because neither Whidby nor Jackson was a resident of Dawson County,
Taking all evidence in a light most favorable to Jackson, the court finds that Jackson
thought he had been divorced from Whidby in Hall County, Georgia, but in fact, he and Whidby
have never been lawfully divorced anywhere. There is no genuine issue of fact as to that.
The court in the Leonard decision relied on by Jackson explained that a presumption of
divorce can be overcome by proof, from the appropriate court records from the places the parties
to the marriage have lived, that a divorce has not been granted to either party to the marriage.
560 So. 2d at 1083. That proof has been presented here.
Jackson’s argument that there remains a question of fact is that Whidby was required to
present evidence of a divorce from him to be married in Georgia, so there is a question of fact as
to whether Whidby “obtained a divorce or annulment without Jackson’s knowledge.” (Doc. #39
at p.5). Jackson further argues that if the court accepts that Whidby lied on her marriage
application, the court should not accept any portion of her affidavit.
The affirmative statements in Whidby’s affidavit are that Whidby did not file for divorce
from Jackson in Hall County, her divorce case in Dawson County was dismissed, and that she
did not present evidence of a divorce from Jackson when she applied for a marriage license to
marry Turpin because she did not have any evidence. Whether or not Whidby should have been
issued a marriage license under Georgia law, these statements by Whidby are not undermined by
the fact that she was issued a marriage license to marry Turpin.1 Furthermore, as outlined above,
there is affirmative evidence presented by the Johnsons that was no divorce between Jackson and
That marriage being invalid, Whidby and Turpin have since divorced.
Whidby in Alabama or in the county in Georgia in which Whidby lived or in Hall County. In
view of the affirmative evidence that there is no record of divorce as between Whidby and
Jackson in Alabama or Hall County, Georgia, and that the divorce case Whidby filed in Dawson
County, Georgia was dismissed, the court must conclude that Jackson has failed to create a
genuine issue of fact as to whether he was divorced from Whidby at the time of his relationship
with the Decedent. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (stating that the nonmoving party “must do more than simply show that there is a
metaphysical doubt as to the material facts.”). Therefore, summary judgment is due to be
GRANTED on the issue of Jackson’s capacity to enter into a common law marriage with
For the reasons discussed, it is hereby ORDERED as follows:
1. The Motion to Strike is GRANTED as to statements relayed by court clerks in
Andrea Hatchcock’s affidavit and is DENIED as to statements within Andrea
Hatchcock’s personal knowledge.
2. The Motion for Summary Judgment is GRANTED to the Plaintiffs on the issue of
Jackson’s capacity to enter into a common law marriage with the Decedent.
3. A separate Judgment will be entered in accordance with this Memorandum Opinion
Done this 22nd day of May, 2017.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
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