189 P. 676 | Nev. | 1920
Lead Opinion
By the Court,
This is an action for divorce on the ground of adultery, brought by Phoebe Boswell Clark against Allen L. Clark in the district court of Washoe County, commenced on the 26th day of December, 1917, and ending in a decree in her favor on the 30th day of September, 1919. The cause was tried before the court without a jury. The defendant appeals to this court from an order denying his motion for a new trial and from the judgment.
The facts are stated in the pleadings. The complainant alleges that plaintiff and defendant intermarried on or about the 6th day of August, 1892, at Winnemucca, Nevada, and that said marriage has never been annulled and the bonds of matrimony existing between plaintiff and defendant have never been dissolved, and that they are husband and wife. She alleges that since said marriage on or about February 16, 1910, defendant entered into a contract of marriage and had a marriage ceremony performed between himself and one Emily James, and ever since has lived openly with said Emily James as his wife, and during all of said time held her out to be his wife and lived openly and notoriously in adultery with her and been guilty of a continual and systematic course
The defendant by his answer denies that plaintiff and defendant on or about the 6th day of August, 1892, at said place, or at any other time or place, dr at all, intermarried, and he denies that plaintiff and defendant then, or at any other time, became and now are husband and wife, but, on the contrary, on the 6th .day of August, 1892, and for a long time prior and subsequent thereto, he had a wife living, to wit, Mary E. Clark. He admits that he intermarried with said Emily James on the 16th day of February, 1910, admits that he openly lived with her as his wife, and alleges that said Emily James is his lawful wife.
For reply to the bar pleaded in defense of her action plaintiff alleges that on the 10th day of April, 1893, the defendant was divorced from said Mary E. Clark by the superior court of Sacramento County, Calif., and that the impediment to the marriage of the plaintiff and defendant was at that time removed, and there has been no impediment to their marriage since said date. She further alleges that, at the time of the intermarriage between plaintiff and the defendant, plaintiff had no knowledge of Mary E. Clark, and no knowledge that defendant had been, or claimed to have been, married before his marriage with plaintiff, and plaintiff never did have knowledge -of such fact until a time subsequent to the filing of the complaint in the present action. She further alleges that from the time of her intermarriage with the defendant, and also from and after the 10th day of April, 1893, until a period subsequent to February 16, 1910, plaintiff and defendant lived and cohabited together as husband and wife, and defendant never during all of said time informed plaintiff that she was not his lawful wife and that he had a former wife, and she alleges that by reason of the cohabitation between plaintiff and defendant subsequent to said decree of divorce between defendant and said Mary E. Clark, as aforesaid,
The trial court upon the conclusion of the case took ample time to consider its decision, and wrote a lengthy opinion reviewing the testimony and filed special findings of facts. One of those findings, and the one which is the foundation of plaintiff’s right to a-divorce, is in substance as follows:
That the parties intermarried at Winnemucca, Nevada, on the 6th day of August, 1892; that at the time of the marriage the defendant had a wife living in the State of California, who had commenced in that state a proceeding against the defendant on the 20th day of July, 1892, and on the 10th day of April, 1893, a minute order was entered in that proceeding granting to the defendant’s then wife, Mary E. Clark, a divorce, and on March 6, 1906, a decree of divorce absolute was signed and entered; that at the time of the marriage between plaintiff and defendant the plaintiff had no knowledge of any other woman claiming to be the wife of defendant; that said marriage was entered into in good faith, and that during all the times from said date of marriage and up to and about the year 1910 the plaintiff and defendant lived and cohabited as husband and wife and held themselves out to the world as such husband and wife during all of said times; that during said period of time a child was born to the marriage, which died; that the parties lived together as husband and wife and held themselves out to the world as such in the States of California and Nevada after the marriage of Mary E. Clark and defendant had been annulled; that a marriage contract was entered into between the plaintiff and the defendant after the impediment to the defendant’s marriage was removed by the divorce which
The objections interposed to this finding furnish the grounds for'this appeal. While numerous errors have been assigned, they have been condensed and are discussed under three leading propositions: First, that the pleadings do not state a cause of action against the defendant; second, there is a material variance between the pleadings and proof (and the decision of the court) that entitled defendant to require plaintiff to amend her pleadings; third, there is no evidence whatever of any contract of marriage between plaintiff and defendant.
For convenience we will consider the assignments in their order.
We accept and reaffirm the general rule that, if parties desire marriage and do what they can to render their union matrimonial, but one of them is under a disability, their cohabitation thus matrimonially meant and continued after the disability is removed will, in law, make them husband and wife from the moment that such disability no longer exists, although there are no special circumstances to indicate that the parties expressly renewed their consent or changed their mode of living after the removal of the impediment; and, even though the removal is unknown, continued cohabitation thereafter evidences consent to live in wedlock. 18 R. C. L. 436, where the . cases in support of the doctrine are collated in the notes.
If there are findings to support the judgment, and these findings are supported by the evidence, it is immaterial that there are other findings which the evidence
It is further insisted that, the parties being domiciled in the State of California at the time of the alleged removal of the impediment to their marriage, under the laws of California (section 55, Civil Code, as amended by Stats. 1895) nothing short of an actual contract of marriage, as distinguished from the mere presumption which arises from cohabitation and repute following the removal of an impediment, would suffice to support this action. We are of the opinion that the evidence supports the finding that the parties lived and cohabited together as husband and wife in the State of Nevada prior and subsequent to the date of the removal of the impediment to their marriage, and the law of Nevada controls. Parker v. De Bernardi, supra.
The marriage status of the parties having been established, and being of the opinion that the evidence is sufficient to justify the conclusion of the trial court, we affirm the decree of divorce, and leave that portion of the judgment that purports to award to the plaintiff permanent alimony of $125 per month to be considered on the plaintiff’s appeal from that portion of the judgment.
Rehearing
On Rehearing
By the Court,
While on the original hearing in this matter some question as to the pleadings was urged, it was not renewed in the petition for a rehearing, and we shall content ourselves on this point by saying that the pleadings on the part of the plaintiff in the case are far from models. However, as the case was tried on its merits, with the evident idea on the part of both parties that only one question was involved, viz, “Is the plaintiff the lawful wife of the defendant?” we feel that we should devote no consideration to the question of the pleadings, beyond stating generally that they are sufficient to support the judgment. It may be said that none of the attorneys now in the case were connected with it at the time the issues were being made up. We will state briefly the salient points in the case:
In the year., Allen L. Clark was married to Mary
“That the said parties intermarried at Winnemucca, Nevada, on the 6th day of August, 1892; that at the time of the marriage the defendant had a wife living in the State of California, who had commenced in that state a proceeding against the defendant on the 20th day of July, 1892, and on the 10th day of April, 1893, a minute order was entered in that proceeding, granting to the defendant’s then wife, Mary E. Clark, a divorce, and on March 6, 1906, a decree of divorce absolute was signed and entered; that at the time of the marriage between plaintiff and defendant the plaintiff had no knowledge of any other woman claiming to be the wife of defendant; that said marriage was entered into in good faith, and that during all the .times from said date of marriage and up to about the year 1910 the plaintiff and defendant lived and cohabited as husband and wife, and held themselves out to the world as such*58 husband and wife during all of said times; that during said period of time a child was born to the marriage, which died; that the parties lived together as husband and wife and held themselves out to the world as such in the States of California and Nevada after the marriage of Mary E. Clark and defendant had been annulled; that a marriage contract was entered into between the plaintiff and the defendant after the impediment to the defendant’s marriage was removed by the divorce which was granted to defendant’s former wife in California, and that said parties continued to live together -as husband and wife pursuant to said agreement until the year 1910, when defendant left the plaintiff in the State of California, came to Reno, Nevada, and there on the 16th day of February, ,1910, entered into a supposed marriage contract with and was wrongfully and unlawfully married to one Emily James; that plaintiff and defendant ever since said marriage have been, and now are, husband and wife.”
Counsel for appellant, in their original brief, as well as in their petition, and upon the oral argument, made a vigorous assault upon that portion of the findings wherein it is held that a marriage contract was entered into between the parties after the decree of divorce had been entered .in the said suit of Mary E. Clark v. Allen L. Clark. Strenuous objection is taken by appellant to the statement of the law laid down in the former opinion in the following language:
“We accept and reaffirm the general rule that, if parties desire marriage and do what they can to render their union matrimonial, but one of them is under a disability, their cohabitation thus matrimonially meant, and continued after the disability is removed, will, in law, make them husband and wife from the moment that such disability no longer exists, although there are no special circumstances to indicate that the parties expressly renewed their consent or changed their mode of living after the removal of the impediment.”
The serious objection urged to this statement goes
“It is most earnestly contended that the text quoted and applied by this court does not correctly state even the ‘general rule’ of law; that the mere fact of cohabitation after the disability is removed does not ‘make them husband and wife’; that such statement, as an unqualified abstract proposition of law, is not only not the general rule, but is contrary to the overwhelming, if not the unanimous, voice of authority; that the true rule would, in the excerpt quoted, substitute for the words ‘make them man and wife’ the words ‘raise a presumption or inference that the parties agreed to be man and wife.’ ”
It is evident that the drafter of the former opinion, in using the words “make them husband and wife,” was speaking relative to the particular case, rather than with the view of laying down an abstract rule of law. However, we may say that there are reputable authorities holding that, where parties in good faith enter into a ceremonial. marriage and cohabit as man and wife for several years, and then learn that at the time of such ceremonial marriage the husband had a wife living, and that such former wife procured a divorce about a year after the second marriage, and after learning of the removal of such impediment the parties continue to cohabit as man and wife and hold themselves out to the world as such for a period of years, the court may presume from such conduct that a contract of marriage was entered into after the parties learned of the removal of the impediment. But in view of the facts in this case, and of the finding of the trial court, we do not deem it necessary to determine this point.
Does the evidence justify such action? It is conceded that at the time of the performance of the ceremonial marriage between the parties hereto they desired to contract a valid marriage, and believed that they were competent to contract marriage, and in good faith did all they could to enter into a valid marriage contract, and thereafter, and until the learning of the impediment, cohabited together, and held each other out to the world as husband and wife. So much, we say, is admitted. The dispute exists purely as to whether- or not, after learning of the divorce of the defendant, a contract of marriage was entered into between the parties. We think it clearly appears from the evidence that after the parties had learned of the removal of the impediment, and up to February, 1910, they continued to cohabit and hold each other out to the world as husband and wife. In fact, we do not believe this is questioned. In any event, the parties even lived together as such for a while with the defendant’s mother in Santa Rosa, Calif., and in July, 1899, shortly before they were so living with his mother, the plaintiff gave birth to a daughter, which subsequently died, at the residence of defendant’s mother. A picture of the child is an exhibit in the case, upon which is pasted a newspaper clipping containing a notice of the death of the child, in which its name is given and its parentage stated
Relative to the entering into a contract of marriage between the parties subsequent to their learning of the divorce in favor of Mary E. Clark in 1893, the plaintiff testified:
“Q. After you found that there had been a decree of divorce of the first wife, and that was subsequent to your marriage in Winnemucca, was there any talk between you and Mr. Clark about another formal marriage between yourself and him? A. No, sir.
“Q. Didn’t you say to Mr. Clark that you and he ought to go and be remarried. before a minister or a justice of the peace? A. That was later than that.
“Q. When did that occur? A. Four or five months later than that.
“Q. What was that conversation? A. I didn’t feel that I had been justified of living with Mr. Clark after he found out how that marriage was.
“Q. What did you say to him on that occasion? A. .1 can’t just remember; not much of anything.
“Q. The substance of it? A. I can’t just exactly bring to my memory just what it was.
“Q. You remember there was some talk about it, was there not? A. Yes.
“Q. Do you remember what Mr. Clark said about it? A. He was anxious for me to go and get married over again.
“Q. What did he say about it? A. Well, he said that we better go and get married again; that the folks wouldn’t really like it, and it would put me in a better light.
“Q. Why didn’t you do that ? A. The time we started*62 I took down sick, and after I got up there was no more said about it.
“Q. How long were you sick? A. Six weeks.
“Q. What was the nature of your illness? A. Appendicitis. * * *
“Q. Just tell the court how you came to live with Mr. Clark. A. Mr. Clark didn’t want me to separate from him; he said that I was his wife and always would be his wife.
“Q. He told you that after you had learned about this decree? A. Him and I went both together, but I didn’t pay much attention to it.
“Q. Did you learn at that time that a divorce had been granted in 1893 ? A. Yes.
“Q. You got the information at that time? A. Yes; because Mr. Clark looked over it, and he told me that.
“Q. After learning that the divorce decree had been granted, did your relations toward each other, your conduct and actions and mode of living, conform to what they had been? A. Yes, sir; just exactly the same; nothing was different. * * *
“Q. Mrs. Clark, after you learned about this divorce decree and a former marriage, did you at all the times after that time live with the defendant under the agreement that you were husband and wife? A. Yes.
“Q. How did you live? A. We always lived as man and wife.
“Q. Did I understand you to say that Mr. Clark insisted that you were his wife and always would be? A. Yes, sir.”
The defendant, in rebuttal to this line of evidence, denied that there was any agreement entered into after the impediment had been removed. Among other testimony, he gave the following:
“Q. Give the conversation on both sides as near as you can remember; if you can’t remember, simply say so. A. Well, I just said we won’t get married again; that was all.
“Q. Was there any further discussion about that*63 matter? A. Not very much; I don’t remember how much, it was so long ago.
“Q. How many times since that time have you and the plaintiff in this action talked over the question of the divorce from your first wife? A. Well, I don’t remember that, Judge, how many times.
“Q. Do you remember of ever talking it over with the plaintiff in this case, except at that time at Sacramento ? A. That is all; at the time she discovered it.
“Q. What was the attitude or actions of the plaintiff in this case, when she told you about the record there at Sacramento? A. Well, she felt peeved about it; that was all. Didn’t like the idea of living this way without being married over again. * * *
“Q. You continued to live with her as your wife down to 1910, did you not? A: Yes; I don’t remember the date, but quite a while.
“Q. You continued to live with her until you came to Reno in 1910, just prior to the 22d day of February, when you married Mrs. Clark? A. Yes. * * *
“Q. Isn’t it a fact, Mr. Clark, that from that date down to the time that you came to Reno in 1910, that you continued to live with Mrs. Clark as her husband? A. Yes; I lived with her; that is right.
“Q. And she called you husband, and you called her wife? A. Well, we didn’t call it that way; we just said ‘Phoebe’ and ‘Al.’
“Q. Isn’t it - a fact that you were known to all her friends and relatives- A. I guess so. * * *
“Q. And the relations that have existed between you and the plaintiff in this case since 1893 down to 1910 were precisely the same as they were from your marriage up to 1893, were they not? I will ask you if there was any change in your manner of living. A. No; just the same. * * *
“Q. When you left Mrs. Clark, the relations were perfectly friendly and cordial? A. Yes; always have been.
*64 “Q. She has always treated you as a wife would treat the husband while you lived together? A. Yes, sir.
“Q. Her conduct has been good toward you, has it not? A. Yes, sir. * * *
“Q. Mr. Clark, I am going to ask you again if, at the time this child was born, did you live in the house with your mother? A. Not when the child was born.
“Q. Did you live in the same town where your mother lived? A. Same town; yes, sir.
“Q. Up to a short time before you had occupied the same house? A. Just before the baby died, we moved over to my mother’s.”
After the death of the child, the defendant went, in company with the plaintiff, to its grave, and with his own hand put its name — Allie Virginia Clark — upon a slab at the head of the grave.'
As stated, it will be seen that the sole dispute as to any material matter of fact between the plaintiff and the defendant was as to the entering into a new marriage contract after the discovery of the removal of the impediment. On this point the plaintiff testified flatly that the parties lived together, after they had learned of the removal of the impediment, under the agreement that they were husband and wife. In the case of Hola-bird v. Atlantic Insurance Co., 12 Am. Law Register (N.S.) 566, Fed. Cas. No. 6587, in which the question was involved as to whether or not a-second marriage contract had been entered into between the parties after the removal of the impediment, the court instructed the jury as follows:
“The attention of the j ury is directed to the difference between a mere attempted recognition of a past void marriage and a subsequent expression of mutual and then present consent to be husband and wife. The subsequent marriage may be proved by habit and repute, if the evidence thereof satisfies the jury that the parties had mutually agreed to become husband and wife, in good faith, and cohabited thereafter as such.”
But aside from the view we have expressed, we think the judgment should be affirmed upon another ground. The defendant admits a course of conduct, a manner of living with the plaintiff after the removal of the impediment, which shows clearly that he must have regarded himself as the husband of the plaintiff, to all intents and purposes. She had a perfect right to assume, as did his mother, that he was accepting her as his wife in truth and in fact. He admits that plaintiff was kind and good toward him. Even had he not entered into the second marriage contract with her, it was his evident intention, until he became enamored of Emily James Clark, that she should regard him as her husband.
“If the appellant intermarried with the appellee in ignorance of the inhibition resting upon her, he might, doubtless, within a reasonable time have procured an annulment of the marriage. But it is not averred that he was ignorant of this inhibition, and we must hence assume that he was not ignorant of it. The answer impliedly admitted that the appellant, for more than*66 two years after the decree against Butcher had become absolute, and with full knowledge of all the facts, had lived and cohabited with the appellee as her husband, and that the separation did not result from any supposed irregularity in their marital relations. The facts thus admitted amounted to an unconditional ratification of the marriage of the appellant with the appellee, and to a full recognition of its validity. The appellant was, consequently, estopped from setting up the unlawfulness of the marriage in the first instance, as a defense to the complaint against him for a divorce” — citing authorities.
For the reasons given, it is ordered that the judgment be affirmed.
Concurrence Opinion
concurring in the order:
Uninfluenced by any matter or thing contained in the opinion of the Chief Justice upon the rehearing of this cause, I reaffirm the decree of divorce, for the reasons stated in my former opinion.
I consented to a rehearing of the case because, upon most careful consideration of the petition therefor, I felt that there possibly was a reasonable probability that I had permitted myself to fall into error in my holding to the effect that parties who had entered into a formal marriage, which was invalid because the man had a wife living, continued cohabitation after the man’s former wife secured a divorce, though no new marriage agreement or change in relations was shown, establishes a valid marriage.
Upon further consideration of this proposition, as ' qualified and limited by the particular facts upon which it is predicated in this case, I reach the conclusion that, if there is virtue in the doctrine established by common-law marriages, simple justice and sound morals impel me to adhere to the proposition upon this rehearing. I
I concur in the order.
Concurrence Opinion
I concur.